RCJ Wins Open Records Case: Court Improperly Sealed Cammack DUI Arrest/Plea Record

Jason Ravnsborg is out of office for good, but he’s still losing cases.

Last week on Wednesday, the South Dakota Supreme Court ruled that Fourth Circuit Magistrate Judge Chad Callahan erred in sealing the Senate Majority Leader Gary Cammack’s DUI arrest and plea-bargained careless-driving conviction record.

Last October, Dakota Free Press broke the story of Senator Cammack’s disregard for public safety. I was the only South Dakota media outlet able to document this story, because shortly after I received the court record on October 4, 2021, and just before I published the story with the record on October 5, Judge Chad Callahan sealed it. According to the court record, Cammack was entitled to have the record sealed, as the judge granted suspended imposition of sentence. However, that suspension and sealing were conditioned on Cammack’s paying all fines and costs and staying out of trouble for six months. That probationary period started the day of his guilty down-plea, June 29; the record should not have been sealed until Cammack proved he could be good until December 29.

The Rapid City Journal would like to have seen the court record itself—because sensible journalists know you can’t believe anything you read on the Internet, and because this case stank like Cammack’s breath of special treatment—and asked Judge Callahan and Pennington County State’s Attorney Mark Vargo (Cammack drank and drove in Meade County, but they farmed the case out to Vargo’s office to avoid conflicts) to explain why it was breaking the law to hide a Senator’s arrest and conviction. Judge Callahan and Vargo ignored them, so the RCJ took the matter to the South Dakota Supreme Court.

RCJ’s attorney Jon Arneson and what used to be Jason Ravnsborg’s Attorney General’s office submitted briefs by January 10, and the Supreme Court ruled last Wednesday.

The high Court didn’t have to work very hard to determine that Judge Callahan screwed up. SDCL 23A-27-14 says a person granted suspended imposition of sentence earns discharge and dismissal “upon completion of the observance of all conditions imposed” by the court. Judge Callahan argued that he didn’t actually put Senator Cammack on probation by merely imposed a “condition of sentence.” The RCJ argued and the Court agreed that SDCL 23A-27-14 refers to “all conditions”, and even if Judge Callahan doesn’t call the condition “probation”, even if Judge Callahan didn’t require the Senator from Union Center to check in with a probation officer every week, Cammack still had to satisfy the condition fully—in this case, for six months—before the court could seal his record.

The Court says Judge Callahan could still have legally hidden Cammack’s arrest and sentence if Judge Callahan had simply changed the condition. SDCL 23A-27-20.1 allows judges to “modify the terms and conditions of a probation.” On October 4, Judge Callahan could have simply stricken the condition, declared Cammack scot free, and locked up Cammack’s record.

The problem here is that Judge Callahan did not—on October 4, 2021—enter an order terminating the previously imposed condition. As explained in Judge Callahan’s response to this Court’s directive, on the same day he entered the order sealing Cammack’s court file, he also entered a written order memorializing his suspension of the imposition of Cammack’s sentence, effective June 29, 2021, which included the condition that Cammack obey all laws for six months. Such period would not expire until December 29, 2021. Thus, the court’s finding in its October 4 seal order that Cammack had observed all the conditions imposed by the court was erroneous because on that date, Cammack could not have satisfied the conditions set forth in the corresponding order suspending the imposition of his sentence [Justice Patricia Devaney, opinion, Rapid City Journal v. the Honorable Chad R. Callahan, 2022.06.22, p. 13–14].

Judge Callahan says he intended to lift the condition on October 4 but a clerical error left the condition on the document he signed that day to seal Cammack’s record. Judge Callahan did issue an amended order on December 15 removing the condition, but on paper, in October, when all the news agencies were comin’ a’knockin’, Cammack’s record was still a public record that the Meade County Clerk of Courts should have been handing out.

The Court rejects, however, the Rapid City Journal‘s claim that Judge Callahan cahootsified in any “government secrecy” plot. The Court notes that Cammack’s record was available from the time of his arrest in January 2020 until October 4, 2021, and that Cammack’s court hearings were all open to the public. The Court also notes that Cammack’s attorney gave RCJ all the documents it asked for, including emails establishing the intent to seal the case. (And don’t forget, Cammack’s lawyer, Nathaniel Nelson, eagerly argued his client’s case in the press.) There was no nefariousness in the attempt to hide the record of a sitting Senator’s drinking and driving; the judge simply made a clerical error that left unpleasant records of said drinking and driving available to the press for a few weeks longer than the defendant would have liked.

This decision for open records was only 3–2, and the Supreme Court ruled 5–0 against the Rapid City Journal on another argument, that it had standing to challenge the sentence itself. The Court did affirm 5–0 that court documents are still open records during a suspended imposition of sentence. The newspaper is generally pleased with the result:

Arneson said the court’s decision established an important right of access to government records and that a judge’s order to correct a mistake does not nullify that right.

“This order correcting a mistake is one that the media didn’t make and the public didn’t make, but the court made — that correction may be valid, but it’s not going to be a remedy to undo the public’s rights up to the point of correction,” Arneson said.

…”All in all, I think this is a solid affirmation that the public has a vested interest in rights to have access to government records that cannot be preemptively swept under the rug unless the broom doing the sweeping is pretty rock-solid, legally,” Arneson said [Nathan Thompson, “State Supreme Court Rules the Journal Was Wrongfully Denied Access to Court Records,” Rapid City Journal, 2022.06.23].

I’m going to miss Jason Ravnsborg. When he was in office, it was a lot easier for defenders of liberty like the Rapid City Journal to win cases against our secretive, oppressive state government.