On Wednesday, the South Dakota Supreme Court upheld a Second Circuit Court ruling to unseal search warrants executed against usury-billionaire T. Denny Sanford.
The ruling refers only to an “Implicated Individual,” so KELO-TV and that Sioux Falls paper politely decline to name names, but KSFY, the Associated Press, The Daily Beast, and other outlets have no qualms about naming the richest man in South Dakota as the subject of the lawsuit says the lawsuit brought by ProPublica and that Sioux Falls paper seeking information concerning the South Dakota Division of Criminal Investigation’s investigation of Sanford’s possible possession of child pornography.
According to the ruling, written for the unanimous court by Justice Mark Salter, DCI executed search warrants on Sanford’s email account on December 9, 2019, and on his internet or cellular providers on March 13, 2020. They did not search Sanford or his property. DCI asked the court to seal the warrants to avoid fouling the investigation. Circuit Court Judge James Power thought that sealing sounded good at the time, but when ProPublica asked for the records in July 2020, Judge Power “reflected on its authority to enter the earlier orders to seal.” After discussions with and briefs from attorneys for the press and Sanford and a formal hearing on October 7, 2020, Judge Power acknowledged that SDCL 23A-35-4.1 allows him to seal the contents of supporting affidavits “but may not prohibit disclosure that a supporting affidavit was filed, the contents of the warrant, the return of the warrant, nor the inventory.”
Unsatisfied with that plain application of the plain language of statute to the richest man in South Dakota, Sanford, through his attorney, former attorney general Marty Jackley, appealed to the South Dakota Supreme Court, which heard closed arguments on August 24, 2021.
Justice Salter says the Second Circuit read the “clear and unambiguous” language of SDCL 23A-35-4.1 correctly:
The plain language of the statute provides an unmistakable expression of legislative intent. A court may seal the contents of an affidavit in support of a search warrant upon a showing of reasonable cause, but only until the investigation is terminated or an indictment or information is filed. The statute’s text is equally clear in its command that the court “may not prohibit” the public disclosure of other specific records, namely, the contents of the warrant, the return of the warrant, and the inventory. Nor may the court prohibit public disclosure of the fact that a search warrant affidavit has been filed. The Press, for its part, has not sought review of the portion of the circuit court’s amended orders sustaining its decision to seal the search warrant affidavits for the time being, and it would seem, from all appearances, that an elementary application of SDCL 23A-35-4.1 disposes of the disclosure issue before us [Justice Mark Salter, opinion, In the Matter of an Appeal by an Implicated Individual, 2021.10.27].
Salter rejected Jackley’s argument that “the judiciary possesses preeminent inherent authority to regulate its records—i.e., that the courts can ignore the Legislature and make up its own rules, the way the Department of Labor and Regulation does—but Justice Salter maintains that even his highest court remains subject to “relevant statutory authority.” Justice Salter says the Legislature may rewrite the law to allow the courts to seal all search warrant records, which Salter says “may well be… a better or more pragmatic approach, but this is not the current state of the law.” Applying SDCL 23A-35-4.1 to unseal the requested information about Sanford’s warrants is “unavoidable”.
But we don’t get to see the Sanford warrants and related documents for about three weeks:
According to the Attorney General’s Office, the case will remain sealed until the petition for the rehearing time expires and the case is remitted back to the trial court. That time is 20 days.
“One of two things will happen either the issue will continue because one of the parties has asked for re-hearings by the supreme court or the case will, in my opinion, be resolved in that the order precluding public access to these warrant materials be granted,” said [USD Law dean Neil] Fulton [staff and Kevin Gonzalez, “South Dakota Supreme Court Unseals Investigation of Billionaire T. Denny Sanford,” KSFY, 2021.10.28].
Sanford has not ben arrested or charged. Austin Goss has reported that killer Attorney General Jason Ravnsborg “determined that there was enough evidence to charge Sanford in the case, but opted to defer to federal prosecutors because the case spanned across many states.” Wednesday’s Supreme Court ruling means that, next month, we’ll get to see some of that evidence.