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South Dakota

Open Courts Compendium

Author

Jon E. Arneson
123 South Main Avenue, Suite 202
Sioux Falls, SD 57104
605-335-0083

Last updated April 2018

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

South Dakota courts recognize the right of openness guaranteed by the United States Constitution and by the common law:

Both the First Amendment and the common law involve a presumption of openness, but the scrutiny required of the trial judge's decision to close the proceedings differs. Under a First Amendment analysis, the presumption of openness can only be overcome with a showing of an “overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press–Enterprise Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510 (1984). The common law, on the other hand, balances the competing interests of the parties.

Rapid City Journal v. Delaney2011 S.D. 55, ¶ 9, 804 N.W.2d 388, 392.

With respect to proceedings, there are no specific access statutes or court rules. However, access to court records is governed by S.D. Codified Laws § 15-15A for South Dakota’s Unified Judicial System Court Records Rule which discusses, among other things, who has access to court records, which records are only available at a court facility, and procedures for requesting access.

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B. Overcoming a presumption of openness

The Supreme Court of South Dakota has stated:

Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.

Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 21, 804 N.W.2d 388, 395–96 (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).

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C. Procedural prerequisites to closure

The Supreme Court of South Dakota has stated:

Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.

Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 21, 804 N.W.2d 388, 395–96 (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

Members of the media, with their “zone of interests protected by the First Amendment,” have standing to challenge court closures despite not being parties or direct subjects of an order. Sioux Falls Argus Leader v. Miller, 610 N.W.2d 76, 81 (SD 2000).

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B. Procedure for requesting access in criminal cases

There is no formal rule or practice. The essential thing is to get the court’s attention.

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C. Procedure for requesting access in civil matters

There is no formal rule or practice, although members of the media have moved to intervene in order to assert their arguments against sealing or court closures.  See, e.g., Rapid City Journal v. Delaney, 2011 S.D. 55, 804 N.W.2d 388 (noting that media entity intervened in lower court and then challenged court’s gag order and orders closing court proceedings and records).

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D. Obtaining review of initial court decisions

In South Dakota’s two-tiered court system, members of the media can appeal the Circuit Court’s order to the South Dakota Supreme Court and ask for an expedited procedure. Original mandamus or prohibition would also be possible remedies at the Supreme Court level.

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III. Access to criminal proceedings

A. In general

“Justification for closing a criminal trial must be ‘weighty,’ supported by a compelling interest, and ‘narrowly tailored.’” Rapid City Journal v. Delaney2011 S.D. 55, ¶ 11, 804 N.W.2d 388, 392 (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982)).

Note that the South Dakota Constitution, art. VI, § 7, preserves a defendant’s right to a “public” trial.

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B. Pretrial proceedings

C. Criminal trials

S.D. Codified Laws § 23A-24-6 permits, but does not require, exclusion of media during a minor’s testimony regarding a sexual offense involving a child if it is “in the best interest of the minor.”

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D. Post-trial proceedings

E. Appellate proceedings

Oral arguments before the South Dakota Supreme Court, the appellate level in the two-tiered court system, are open and broadcast. See generally S.D. Codified Laws § 15-24.

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IV. Access to criminal court records

A. In general

See S.D. Codified Laws § 15-15A, which discusses access to court records, including procedure, fees, etc.

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B. Arrest records

South Dakota has relatively restrictive laws that make obtaining basic arrest information from law enforcement problematic. See S.D. Codified Laws § 23-5 which generally serves to conceal criminal identification information in law enforcement’s hands.

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C. Dockets

Affidavits, warrants, return and inventory are open records, although under special circumstances affidavits may be kept confidential. See S.D. Codified Laws § 23A-35-4.1. Wiretap applications, orders and recordings will generally be disclosed only for “good cause.” S.D. Codified Laws § 23A-35A-12, 13.

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E. Discovery materials

Discovery materials are generally closed. See S.D. Codified Laws § 15-15A-7(i).

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F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

The Unified Judicial System court records rule, S.D. Codified Laws § 15-15A, generally permits copying and remote electronic access to available records. See S.D. Codified Laws § 15-15A-5. However, limitations may be imposed. See S.D. Codified Laws § 15-15A-6.

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V. Access to civil proceedings

A. In general

South Dakota courts recognize that “a right of access to civil court proceedings exists.” Rapid City Journal v. Delaney, 2011 S.D. 55,¶ 9.

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B. Pre-trial proceedings

C. Trials

In Rapid City Journal v. Delaney, 2011 S.D. 55, 804 N.W.2d 388, the Supreme Court of South Dakota recognized a First Amendment right of access to civil trials.

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D. Post-trial proceedings

E. Appellate proceedings

The appellate process, i.e. oral arguments before the South Dakota Supreme Court, are open and recorded. See S.D. Codified Laws § 15-24.

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VI. Access to civil records

A. In general

See S.D. Codified Laws § 15-15A (Uniform Judicial System Court Records Rule). Court records are generally open (S.D. Codified Laws § 15-15A-5), but in addition to specific exceptions (S.D. Codified Laws § 15-15A-7 et seq.) there is a general catch-all for “information that is not to be accessible. . . . pursuant to state law, court rule or case law. . . . S.D. Codified Laws § 15-15A-7(2).

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B. Dockets

Civil case filing statements that include identification information are closed. S.D. Codified Laws § 15-6-5(h).

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C. Discovery materials

D. Pre-trial motions and records

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

“[P]ublic access” includes a right to “obtain a copy.” S.D. Codified Laws § 15-15A-3(3). This rule is applicable to all court records, “regardless of the physical form of the court record.” S.D. Codified Laws § 15-15A-4.

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VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

There is no provision for juror anonymity. S.D. Codified Laws § 16-13-31.1 permits public inspection of all records and materials used in “all stages of the jury selection process.”

S.D. Codified Laws § 16-13-31.1 permits public inspection of all records and materials used in “all stages of the jury selection process. . .  upon court order. . . for the purpose of determining the validity of the selection of the jury.”

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C. Grand jury proceedings and records

“[M]atters occurring before a grand jury” are closed. S.D. Codified Laws § 23A-5-16; S.D. Codified Laws § 15-15A-7(3)(l). However, that would not seemingly pertain to juror information, which should remain open under SD Codified Law 16-13-31.1.

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D. Interviewing jurors

There are no statutory restrictions on petit jurors. S.D. Codified Laws § 23A-5-16 prohibits a juror, witness or court officer from disclosing grand jury “matters.”

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VIII. Proceedings involving minors

A. Delinquency

Hearings are closed “unless court finds compelling reasons to require otherwise. . . .” S.D. Codified Laws § 26-7A-36. However, proceedings “shall be open,” if the juvenile is 16 and charged with a crime of violence or serious drug offense. In In re M.C.527 N.W.2d 290 (S.D. 1995), the Supreme Court of South Dakota  denied access to a juvenile hearing and transcript, finding that the newspaper seeking such access had failed to present compelling reasons to provide access. The Supreme Court also affirmed closure of a juvenile proceeding in In re Hughes County, 452 N.W.2d 128, 133 (S.D.1990).

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B. Dependency

Dependency hearings are closed “unless the court finds compelling reasons to require otherwise.” S.D. Codified Laws § 26-7A-36.

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C. Other proceedings involving minors

“[R]ecords and information pertaining to an adoption” are closed under S.D. Codified Laws § 25-6-15.1, so hearings, presumably, are considered closed, too.

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D. Prohibitions on photographing or identifying juveniles

Police records of children are confidential. See S.D. Codified Laws § 26-7A-27. Generally, identification information regarding a child in the juvenile court system may not be released without a court order or prior to adjudication of delinquency. See S.D. Codified Laws § 26-7A-28.

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E. Minor testimony in non-juvenile courts

“[A]uthorized representatives of the news media” are among those allowed access to minor’s testimony concerning sexual offense, unless the court determines otherwise. S.D. Codified Laws § 23A-24-6.

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

Such proceedings are closed pursuant to S.D. Codified Laws § 27A-12-25 through 27A-12-32.

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D. Attorney and judicial discipline

Attorney disciplinary proceedings are closed until a formal complaint is filed with the Supreme Court, unless the attorney requests the matter be public or “investigation is premised on conviction of a crime.” S.D. Codified Laws § 16-19-99.

Judicial disciplinary proceedings are closed until the reviewing commission files a recommendation with the Supreme Court, unless the judge requests the matter be public or the “investigation is premised on conviction of either a felony crime or one involving moral turpitude.” S.D. Codified Laws § 16-1A, Appx. III(1).

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

This is a permitted practice. See Argus Leader v. Miller, 610 NW2d 76 (SD 2000) (media outlets had standing to challenge trial court's gag order and court closures).

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B. Gag orders on the press

C. Gag orders on participants

See Argus Leader v. Miller, 610 NW2d 76 (SD 2000) (affirming gag order on trial participants).

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D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

See generally S.D. Codified Laws § 15-15A-1 (Purpose of rule of access to court records). See also the codified exceptions to record access listed at S.D. Codified Laws § 15-15A-7, which include, among other things, affidavits filed in support of search warrants, abortion records, guardianships and conservatorship records. Trade secrets are specifically addressed in S.D. Codified Laws § 15-15A-8.

Parties also frequently cite a defendant’s right to a fair trial to justify closure.  See, e.g., Sioux Falls Argus Leader v. Miller, 610 NW2d 76, 81–82 (SD 2000).

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B. Cameras and other technology in the courtroom

The circuit courts of South Dakota do not allow cameras or recording, but the Supreme Court permits cameras, video and audio recording and broadcasting. See S.D. Codified Laws § 15-24-5; S.D. Codified Laws § 15-24-6(c); S.D. Codified Laws § 15-24-12.  Authorization is provided in S.D. Codified Laws § 15-24-5, § 15-24-6(c) and § 15-24-12. Cameras are permitted only during Supreme Court proceedings.  Pooling, if required by limitations, is arranged by a “media coordinator” appointed from media by the court. S.D. Codified Laws § 15-24-12(e); S.D. Codified Laws § 15-24-10.  Two still cameras are permitted in Supreme Court. S.D. Codified Laws § 15-24-12(b). Webcasting is permitted in the Supreme Court. See S.D. Codified Laws § 15-24-6.

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C. Tips for covering courts in the jurisdiction

South Dakota has a two-tiered system. The circuit courts throughout the state handle all civil and criminal matters. There are no special juvenile courts or probate courts. The basic appellate step is to the South Dakota Supreme Court, which also retains original jurisdiction in a limited number of matters.  The most logical contact would be the clerk’s office or the court administrator’s office.  The best approach to obtain transcripts is to contact the court reporter directly.

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