Billionaire usurer turned philanthropist self-memorializer T. Denny Sanford still hasn’t bought off South Dakota’s Judicial Branch. In 2021, the South Dakota Supreme Court upheld a Circuit Court ruling that the public had a right to see the search warrants the state executed against Sanford in 2019 as part of an investigation into child pornography. After killer Attorney General Jason Ravnsborg’s office declared the investigation found nothing prosecutable, Sanford sued again to prevent release of the affidavits law enforcement filed to obtain those search warrants.
After hearing Sanford’s latest appeal just two weeks ago, the South Dakota Supreme Court said the affidavits, like the warrants they engendered, are public record and that Sanford has no special right to inspect and redact them before their release.
The two-week turnaround on this decision is unusual (litigant Sioux Falls Argus Leader expected a decision to take months), but in a way, it makes sense. The Supreme Court wasn’t plowing much new ground in its ruling. Its 2021 ruling on the warrants provided the basic precedent, and the statute in question, SDCL 23A-35-4.1, is as clear about the public nature of the affidavits as it is about the public nature of the warrants:
If not filed earlier, any affidavit in support of a search warrant shall be filed with the court when the warrant and inventory are returned. Upon filing the warrant and supporting documents, the law enforcement officer may apply by separate affidavit to the court to seal the supporting affidavit from public inspection or disclosure. The court, for reasonable cause shown, may order the contents of the affidavit sealed from public inspection or disclosure but may not prohibit disclosure that a supporting affidavit was filed, the contents of the warrant, the return of the warrant, nor the inventory. The court may order that the supporting affidavit be sealed until the investigation is terminated or an indictment or information is filed. In cases of alleged rape, incest, or sexual contact, if the victim is a minor, the court may limit access to an affidavit pursuant to § 23A-6-22.1. However, a court order sealing a supporting affidavit may not affect the right of any defendant to discover the contents of the affidavit under chapter 23A-13 [SDCL 23A-35-4.1, last amended 2011].
The court may seal affidavits supporting search warrants while the investigation is happening. When the investigation is done, whether it results in an indictment or not, affidavits become public record. That law didn’t change between the Supreme Court’s 2021 ruling and its hearing of Sanford’s renewed challenge. Yesterday’s ruling notes that “It is evident that the circuit court viewed Sanford’s most recent motion as a belated and unpersuasive effort to further delay the unsealing of the affidavits required by statute.”
Sanford could delay further by appealing to the United States Supreme Court, but two losses on this clearly written statute suggest he’d have a hard time finding a toehold before the highest court. USD law prof Roger Baron agrees an appeal is unlikely:
Baron added there’s still an option by Sanford’s lawyer for a rehearing or an appeal to the U.S. Supreme Court.
“I don’t see, from my perspective, any federal issues or constitutional issues that would be grounds for asking the (U.S.) Supreme Court to get involved,” Baron said [Eric Mayer, “South Dakota Supreme Court Affirms Ruling on Sanford Affidavits,” KELO-TV, 2023.04.06].
The press that Sanford pressed to oppress is impressed with the Court’s quick and independent work:
Shelly Conlon, the Argus Leader‘s news director, applauded the court’s decision.
“To take on a Goliath of an influence in our community and win today is a strong victory for the public’s right to know,” Conlon said. “The law is clear, and the Court’s decision only reaffirms the role journalism has in accountability and understanding government, public figure and law enforcement decisions.”
Jon Arneson, attorney for the Argus Leader, said in a statement he was appreciative of the court’s quick ruling.
“Obviously, I agree with the Supreme Court’s unanimous decision,” he said. “The reasoning was sound and well articulated.”
David Bordewyk, the executive director of the South Dakota Newspaper Association, said the case was clear cut that the information was public.
“It’s a good day for freedom of information and there aren’t many of those,” he said. “This is good to see the court ruled in favor of the public’s right to know” [Annie Todd, “Supreme Court: T. Denny Sanford Search Warrant Affidavits in Child Porn Case Must Be Unsealed,” Sioux Falls Argus Leader via Yahoo, 2023.04.06].
The judicial bureaucracy still has to dot some i’s before it crosses the T, but the five affidavits to Sanford’s search warrants should be available by the end of this month.