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Governor's office can keep pardon information sealed

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Governor’s office can keep pardon information sealed

  • Pardons in South Dakota can be sealed because that state’s constitution does not allow the legislature to make laws that interfere with the governor’s exclusive authority to pardon, a circuit court ruled.

April 16, 2003 — The governor of South Dakota can issue secret, sealed pardons under that state’s constitution, a circuit court in Sioux Falls ruled Tuesday in a suit brought by several persons who were pardoned and wished to keep the matter secret.

A friend-of-the-court brief filed by numerous print and broadcast media in the state and national media organizations, including The Reporters Committee for Freedom of the Press, sought unsuccessfully to make public pardons granted by the governor under his constitutional powers.

The power to pardon in South Dakota rests with the governor, and neither the legislature nor the judiciary can encroach upon that power absent a constitutional amendment, the court said.

The case stems to a request by the Argus Leader in Sioux Falls in which the newspaper asked Secretary of State Chris Nelson to make public the names of several individuals pardoned by former Gov. Bill Janklow. Nelson asked the state’s attorney general for an opinion as to whether any of the names would be made public. The governor can issue pardons under a state statute that spells out a power to seal them. But he also can issue pardons under his constitutional authority and Nelson was unsure whether these also could be kept secret.

The attorney general concluded that the state’s law did not allow the governor to seal the pardons granted under his constitutional authority, although the statute was clear that pardons granted under the statute would stay sealed. But before the newspaper could have the records, the pardoned persons sued to keep them sealed.

The court said a goal of the state’s 1972 constitution was to augment the power of the state’s chief executive and it granted that office exclusive authority over pardons. The state’s open records law has no exception for pardons, but the legislature cannot intrude upon matters that exclusively belong to the executive branch, the court said.

The court distinguished accountability for pardons in South Dakota from presidential pardons and from pardons in other states. It noted that 34 states have “constitutionally precise” requirements for a public accounting of pardon activity. Of the others, South Dakota has the broadest grant of executive power for issuing pardons, it said.

The New York Times reported that Janklow, who is now serving as a Republican congressman in the U.S. House of Representatives, said that he does not care how the lawsuit turns out.

The Times also reported that Larry Long, the state’s attorney general, will appeal the ruling.

(Doe v. Nelson; Media counsel: Jon Arneson, Sioux Falls, S.D.) RD

© 2003 The Reporters Committee for Freedom of the Press

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