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Unnamed appellant loses bid to keep warrants sealed

SDSC 08-24-21 Jeff Beck Photo with AG in bg by AP Steven Groves.JPG
Stephen Groves
Jeffrey Beck argues in front of the South Dakota Supreme Court on behalf of ProPublica on Aug. 24. In the background is former Attorney General Marty Jackley, who represents the unnamed appellant.

Ruling that the question was not even close, the South Dakota Supreme Court decided that state law clearly requires making most search warrant information public. The high court heard oral arguments in August and made its opinion public on Thursday, Oct. 28. An unnamed appellant is trying to keep details of five search warrants sealed, but the Supreme Court says state law, constitutional law, and common law outweigh judicial authority to manage records.

The appellant, in this case, is known in Supreme Court arguments and its opinion as “An Implicated Individual.”

The circumstances leading up to this appeal started in December 2019, when an agent with South Dakota’s Division of Criminal Investigation applied for a search warrant in Second Circuit Court in Sioux Falls.

The subject of the search was an email account associated with the unnamed appellant.

DCI later applied for four more warrants related to that first warrant.

Reporters from ProPublica and the Sioux Falls Argus Leader asked for access to those warrants. Second Circuit Judge James Power ruled that under state law, he could not deny public access to search warrants, and he further found that the supporting DCI affidavits would be made public, by law, after the investigation had ended or when information was filed.

At oral arguments, the unnamed appellant was represented by former Attorney General Marty Jackley, who maintained that judges have inherent powers to manage the court’s records.

“The uncharged individual urges this court to resist ProPublica’s invitation to be the first court, to our knowledge, to divest itself of its authority over its own search warrant records,” Jackley told justices.

Jackley said if judges can’t seal search warrant files, they also cannot redact information before the files are made public.

But the attorney for ProPublica disagreed. Jeff Beck said the state legislature recognized the difference between redacting certain information and sealing files and made that distinction in statutes.

“23-35A actually addresses, specifically, the redaction issue when it talks about cases of alleged rape, incest, sexual contact, if the victim’s a minor, that certain things will be reacted,” Beck said.

The South Dakota Supreme Court has upheld the lower court’s ruling.

Justice Mark Salter, who authored the unanimous opinion, wrote that questions about law, in this case, could easily be resolved by “using the cardinal rule of statutory interpretation—simply read the text and apply it.”

The high court will remit the case to the Second Circuit after waiting 20 days to see if the appellant asks for a rehearing.

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