#30063-a-SRJ

2023 S.D. 16

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF AN APPEAL BY AN

IMPLICATED INDIVIDUAL

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JAMES A. POWER

Judge

* * * *

STACY R. HEGGE of

Gunderson, Palmer, Nelson &

 Ashmore, LLP

Pierre, South Dakota

TALBOT J. WIECZOREK of

Gunderson, Palmer, Nelson &

 Ashmore, LLP

Rapid City, South Dakota

Attorneys for appellant 

Implicated Individual.

* * * *

ARGUED

MARCH 23, 2023

OPINION FILED 04/05/23
PAUL S. SWEDLUND

Solicitor General

Pierre, South Dakota Attorney for appellee State of 

South Dakota.

JEFFREY R. BECK

Sioux Falls, South Dakota Attorney for appellee 

ProPublica.

JON E. ARNESON

Sioux Falls, South Dakota Attorney for appellee Argus 

Leader.
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JENSEN, Chief Justice

[¶1.] Following the completion of the State’s criminal investigation involving 

T. Denny Sanford, also known as Implicated Individual,1 the circuit court entered 

an order to unseal the search warrant affidavits related to the investigation. 

Sanford appeals, challenging the denial of his request to inspect and participate in 

redacting the affidavits before the circuit court unseals them. We affirm.

Background

[¶2.] This is the second appeal by Sanford challenging the unsealing of a 

search warrant file containing five separate search warrants, returns of the 

warrants, inventories, and affidavits in an investigation involving Sanford. See In 

re an Appeal by an Implicated Individual, 2021 S.D. 61, 966 N.W.2d 578 

(Implicated Individual I). In Implicated Individual I, the circuit court had initially 

sealed the entire search warrant file based upon law enforcement’s representation 

that disclosure would impede the then-ongoing investigation. A ProPublica reporter 

requested the documents in the sealed file, prompting the circuit court to review the 

scope of its authority to seal the entirety of the search warrant file. ProPublica and 

intervenor Argus Leader (Press, collectively) submitted a joint brief to the circuit 

court arguing for the file to be unsealed. At the time, the State resisted unsealing 

the file, raising concerns that doing so would interfere with the investigation. 

1. During the proceedings involved in the first appeal in In re an Appeal by an 

Implicated Individual, 2021 S.D. 61, 966 N.W.2d 578, T. Denny Sanford was 

referred to as Implicated Individual because his identity was not a matter of 

public record. The warrants were unsealed following our decision, and his 

identity is now a matter of public record.
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Sanford also resisted the request, arguing that the release would impact his privacy 

and reputation.

[¶3.] Relying upon SDCL 23A-35-4.1, the circuit court issued amended 

orders providing that it was not authorized to seal the contents of the warrants, 

return of the warrants, or the inventories. The court ordered such “documents shall 

be unsealed and become publicly accessible court records.” The court concluded 

pursuant to SDCL 23A-35-4.1 that the affidavits in support of the five search 

warrants would remain sealed, but “[f]ollowing termination of the investigation or 

filing of an indictment, the document’s contents will [be] unsealed and available to 

public inspection or disclosure as a publicly accessible court record.” Sanford and 

the State appealed the orders, and the circuit court stayed its ruling pending 

appeal.

[¶4.] On appeal to this Court, Sanford argued that rules governing access to 

court records found in SDCL chapter 15-15A, promulgated by the South Dakota 

Supreme Court, conflicted with statutes enacted by the Legislature and must 

prevail because of the judiciary’s inherent authority over its records. Implicated 

Individual I, 2021 S.D. 61, ¶ 19, 966 N.W.2d at 584. We interpreted the plain 

language of SDCL 23A-35-4.1 to permit a circuit court to “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.” 

Id. ¶ 18, 966 N.W.2d at 583. We further observed that “[t]he 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 
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warrant, and the inventory. Nor may the court prohibit public disclosure of the fact 

that a search warrant affidavit has been filed.” Id.

[¶5.] We emphasized that “a court’s discretion to ‘prohibit public access to 

information in a court record’” as set forth in SDCL 15-15A-13 is limited by the 

existence of “sufficient grounds to prohibit access according to applicable 

constitutional, statutory and common law.” Id. ¶ 21, 966 N.W.2d at 584 (quoting 

SDCL 15-15A-13).2 We further noted, under SDCL 15-15A-8, that certain 

personally identifying information within court records must be redacted as a 

matter of course.3 Id. ¶ 24, 966 N.W.2d at 585. While in Implicated Individual I

2. SDCL 15-15A-13 provides:

A request to prohibit public access to information in a court 

record may be made by any party to a case, the individual about 

whom information is present in the court record, or on the 

court’s own motion. Notice of the request must be provided to 

all parties in the case and the court may order notice be 

provided to others with an interest in the matter. The court 

shall hear any objections from other interested parties to the 

request to prohibit public access to information in the court 

record. The court must decide whether there are sufficient 

grounds to prohibit access according to applicable constitutional, 

statutory and common law. In deciding this the court should 

consider the purpose of this rule as set forth in § 15-15A-1. In 

restricting access, the court will use the least restrictive means 

that will achieve the purposes of this access rule and the needs 

of the requestor.

3. SDCL 15-15A-8 provides for automatic redaction of the following:

(1) Social security numbers, employer or taxpayer identification 

numbers, and financial or medical account numbers of an 

individual.

(2) Financial documents such as income tax returns, W-2’s and 

schedules, wage stubs, credit card statements, financial 

(continued . . .)
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there was “no redaction question before us[,]” we stated that “[w]e perceive no 

tension between our rules allowing for the limited redaction of this information to 

protect individual privacy interests and SDCL 23A-35-4.1’s requirement to allow 

access to the broader ‘contents’ of a search warrant.” Id.

[¶6.] Following our decision in Implicated Individual I, the Press filed with 

the circuit court a motion to unseal the affidavits and a motion to compel discovery 

on the status of the State’s investigation. The court denied the motion to unseal the 

affidavits because the State indicated the investigation was ongoing.

[¶7.] The State filed a notice of completed investigation with the circuit 

court on May 27, 2022, satisfying one of the triggering conditions upon which the 

circuit court’s amended orders required the affidavits to be unsealed. In response, 

Sanford filed a motion to stay the unsealing of the affidavits. He asserted a number 

of arguments in support of his claim, including: (1) that the Press was required to 

file a motion and make a showing supporting the unsealing of the affidavits; (2) that 

SDCL 23A-35-4.1 unconstitutionally violates rights of victims provided for in Article 

VI, § 29 of the South Dakota Constitution (Marsy’s Law); (3) that the absence of any 

court discretion under SDCL 23A-35-4.1 to stay the unsealing of the affidavits 

violated the presumption of innocence afforded to him by the Due Process Clause; 

(4) that certain comments by the media raised questions whether the State’s 

investigation had been completed; and (5) that Sanford should be provided access to 

________________________

(. . . continued)

institution statements, check registers, and other financial 

information.

(3) The name of any minor child alleged to be the victim of a 

crime in any adult criminal proceeding.
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the affidavits and allowed to participate in redaction before they are unsealed. The 

Press filed another motion to unseal the affidavits, arguing that the court had 

previously ordered the affidavits to be unsealed upon termination of the 

investigation while simultaneously arguing the inspection and redaction process 

proposed by Sanford was unnecessary.

[¶8.] On June 6, 2022, the circuit court denied Sanford’s request to inspect 

the affidavits prior to their unsealing. In a June 16, 2022 order, the circuit court 

denied the motion to stay the unsealing of the affidavits and reiterated denial of the 

inspection request, finding that further delay would serve no valid purpose given 

the two years of litigation and ample opportunity for Sanford to have previously 

raised these issues.4

[¶9.] In ordering the affidavits to be unsealed, the circuit court concluded 

that nothing in SDCL 23A-35-4.1, this Court’s interpretation of that statute in 

Implicated Individual I, or the circuit court’s amended orders required the Press to 

make a formal request to unseal the affidavits. The court also rejected the Marsy’s 

Law and Due Process constitutional claims as well as Sanford’s argument that 

there were questions whether the State’s investigation had concluded. Finally, the 

circuit court indicated its intent to redact “personally sensitive or identifying 

information, which in this case consists of personal email addresses, home 

addresses, phone numbers, and birth dates.” The court noted that Sanford had not 

4. The circuit court agreed to stay the order pending appeal. It found that 

further delay would substantially prejudice the Press because of the timesensitive nature of the public interest in the investigation, however, and 

“gently remind[ed] the Implicated Individual and his counsel to remember 

the obligations imposed by Rule 11 as they contemplate[d] an appeal.”
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cited any authority that would require the court to permit the parties to participate 

in the redaction process or to extend the scope of redaction beyond personally 

identifying information in the affidavits.

[¶10.] Sanford raises a single issue on appeal:5

Whether the circuit court erred in denying Sanford’s request to 

inspect the affidavits prior to their unsealing so that he may 

invoke his rights guaranteed by SDCL 15-15A-13.

Analysis

Standard of review.

[¶11.] “Issues of constitutional and statutory interpretation are . . . subject to 

de novo review.” Thom v. Barnett, 2021 S.D. 65, ¶ 13, 967 N.W.2d 261, 267 (citing 

Jans v. Dep’t of Pub. Safety, 2021 S.D. 51, ¶ 10, 964 N.W.2d 749, 753). We also 

review the interpretation of our own court rules “de novo, utilizing our established 

rules for statutory construction.” Leighton v. Bennett, 2019 S.D. 19, ¶ 7, 926 N.W.2d 

465, 467–68. “Our standard of review for issues of statutory interpretation is well 

established.” Stanley v. Dep’t of Pub. Safety, 2023 S.D. 13, ¶ 10, __ N.W.2d __, __. 

“‘[T]he language expressed in the statute is the paramount consideration’ in 

statutory construction. Further, ‘we give words their plain meaning and effect, and 

5. On appeal, Sanford abandons the other arguments he made to the circuit 

court in opposing the unsealing of the affidavits. Interwoven within 

Sanford’s inspection/redaction arguments, however, is a new claim that he 

has a Fourth Amendment privacy right in the investigative materials 

contained in the affidavits. The Fourth Amendment privacy right recognized 

in the cases cited by Sanford involved a challenge to the reasonableness of 

the search and seizure of property, not a privacy interest in the contents of 

the information that would be publicly disseminated in the search warrant 

affidavits. Sanford has failed to articulate a viable Fourth Amendment 

argument, and we determine this claim to be without merit.
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read statutes as a whole.’ ‘When the language of a statute is clear, certain and 

unambiguous, there is no occasion for construction, and the court’s only function is 

to declare the meaning of the statute as clearly expressed in the statute.’” Id.

(alteration in original) (quoting Ibrahim v. Dep’t of Pub. Safety, 2021 S.D. 17, 

¶¶ 12–13, 956 N.W.2d 799, 802–03). Likewise, “[t]his [C]ourt assumes that court 

rules mean what they say[.]” In re Yanni, 2005 S.D. 59, ¶ 8, 697 N.W.2d 394, 398 

(quoting State v. Sorensen, 1999 S.D. 84, ¶ 14, 597 N.W.2d 682, 684).

[¶12.] We have not previously addressed our standard of review for a court’s 

consideration under SDCL 15-15A-13 of a “request to prohibit public access to 

information in a court record . . . .” We conclude that a review under an abuse of 

discretion standard is appropriate. The circuit court’s order responding to Sanford’s 

request to view the affidavits and participate in redaction in advance of unsealing 

them is analogous to a request for a protective order relating to discovery, which we 

review for abuse of discretion. In re Estate of Jones, 2022 S.D. 9, ¶ 14, 970 N.W.2d 

520, 526; see also State v. Ralios, 2010 S.D. 43, ¶ 47 n.4, 783 N.W.2d 647, 660 n.4 (in 

evidentiary context, “whether to redact and to what extent was within the sound 

discretion of the trial court”). “An abuse of discretion is ‘a fundamental error of 

judgment, a choice outside the reasonable range of permissible choices, a decision 

. . . [that], on full consideration, is arbitrary or unreasonable.’” In re Estate of Jones, 

2022 S.D. 9, ¶ 14, 970 N.W.2d at 526 (alteration and omission in original) (quoting 

Coester v. Waubay Twp., 2018 S.D. 24, ¶ 7, 909 N.W.2d 709, 711).
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Applicable statutory law.

[¶13.] Sanford’s appeal is based on his extrapolation of SDCL 15-15A-13, 

under which a party to a case may make “[a] request to prohibit public access to 

information in a court record . . . .” He argues that “[a]s a party to this matter and 

the subject of the court records, [Sanford] has requested a copy of the affidavits so 

that he may analyze them prior to their unsealing and invoke his rights under 

SDCL 15-15A-13 for redaction purposes if necessary.” He thus attempts to frame 

this latest appeal as involving an entirely novel issue unresolved by Implicated 

Individual I. This case is no longer about the rules that apply to sealing the 

affidavits, he urges, but about the rules for redacting them upon their unsealing. 

He argues that for SDCL 15-15A-13 to be meaningful, the party challenging public 

access to information must be given an opportunity to inspect the records in order to 

make informed constitutional, statutory, and other legal objections to the public 

release of information contained in the affidavits and to provide input on 

appropriate redactions of the information.

[¶14.] Sanford also references SDCL 15-15A-7 (prohibiting public access to 

information excluded by federal or state law) and SDCL 15-15A-8 (prohibiting 

public access to certain information, such as social security numbers, financial 

information, and names of child victims) in support of his claims. Sanford contends 

that SDCL 23A-35-4.1 pertains to a general right of public access to search warrant 

records, whereas SDCL 15-15A-13 pertains to a specific prohibition against public 

access in certain circumstances.
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[¶15.] The Press responds that Sanford’s statutory claims are based upon the 

same arguments that this Court rejected in Implicated Individual I. The Press 

asserts that Sanford has not provided any substantive privacy right that would 

supplant the plain language of SDCL 23A-35-4.1 or the First Amendment right of 

the press and public to access the information contained in the affidavits.

[¶16.] The State also argues that the circuit court properly determined that 

the affidavits should be unsealed under SDCL 23A-35-4.1. The State highlights 

that the compelling interest it held in preventing public disclosure of the affidavits 

and facts underlying the investigation, as recognized by SDCL 23A-35-4.1, no longer 

exists now that the State has concluded its investigation. The State argues that 

requiring the unsealing of an affidavit, after the investigation has been completed, 

is consistent with “[s]ocietal interests in having law enforcement and the judiciary 

operate in the public eye [that are] not overcome simply because no indictment is 

returned. Society has as much interest in understanding why no indictment was 

returned as it does in understanding why one was.” The State also rejects Sanford’s 

claims that he should be permitted a special right of access to the sealed affidavits 

now that the investigation has been completed and the State has announced that 

charges will not be filed in South Dakota.

[¶17.] Sanford’s reliance on SDCL 15-15A-13 to support his claim that the 

circuit court was required to stay the unsealing of the affidavits pending resolution 

of the inspection/redaction issue lacks support in the text of the rule and is 

irreconcilable with our decision in Implicated Individual I. SDCL 15-15A-13 simply 

provides a procedure for a party seeking “to prohibit public access to information in 
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a court record” when “there are sufficient grounds to prohibit access according to 

applicable constitutional, statutory and common law.” There is nothing in the 

language of SDCL 15-15A-13 that affords an affirmative or substantive privacy 

right to Sanford in the content of the affidavits. Nor does the rule forestall public 

access to the affidavits, as mandated by SDCL 23A-35-4.1, after the criminal 

investigation has been completed.6

[¶18.] Sanford’s effort to delay public access to the affidavits is also precluded 

by our decision in Implicated Individual I, where we stated that “[t]he plain 

language of [SDCL 23A-35-4.1] 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.” 2021 S.D. 61, ¶ 18, 966 N.W.2d at 583. 

Further, in rejecting Sanford’s claim in Implicated Individual I that the provisions 

of SDCL chapter 15-15A supersede this statutory mandate, we stated:

The Legislature has enacted SDCL 23A-35-4.1, and nothing in 

our current rules conflicts with the statute’s provisions. To the 

contrary, our rules specifically contemplate the role of statutory 

authority in resolving questions concerning access to court 

records. We can no more overlook SDCL 23A-35-4.1 than we 

could ignore binding legal authority in this or any case that 

6. The circuit court exhaustively reviewed the submissions of the parties in 

determining that the criminal investigation of Sanford had been completed, 

triggering the court’s obligation to unseal the search warrant affidavits under 

SDCL 23A-35-4.1. The court noted Sanford appeared to agree that the State 

had completed its investigation and concluded no crimes had been committed 

in South Dakota. The court observed the possibility of other states 

proceeding with a criminal investigation or prosecution but noted that 

neither party had informed the court of other pending investigations. On 

appeal, Sanford does not challenge the determination by the circuit court that 

the investigation had been completed. 
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comes before us.

Id. ¶ 27, 966 N.W.2d at 586.

[¶19.] Nonetheless, Sanford asks that we read SDCL 15-15A-13 to require the 

circuit court to allow inspection of the affidavits before they are unsealed to 

determine whether there may be confidential or sensitive information supporting 

redaction of some or all of the contents of the affidavits. There is nothing in SDCL 

23A-35-4.1 or SDCL 15-15A-13 that mandates the circuit court to allow such an 

inspection. Moreover, we find no abuse of discretion in the court’s decision to deny 

Sanford’s request to inspect the affidavits and participate in the redaction of 

personal information before unsealing the affidavits.

[¶20.] In denying the request to review the affidavits, the circuit court 

determined that during the two years of litigation leading up to its current decision, 

Sanford had been afforded all the procedural protections set forth in SDCL 15-15A13, requiring the court to “hear any objections from other interested parties to the 

request to prohibit public access to information in the court record[]” and to “decide 

whether there are sufficient grounds to prohibit access according to applicable 

constitutional, statutory and common law.” Throughout the course of this litigation, 

the circuit court had the ability to review the information in the sealed affidavits 

and consider Sanford’s privacy objections, as well as the statutory mandates in 

SDCL 23A-35-4.1. 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. 
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[¶21.] Prior to ordering the affidavits unsealed, however, the court provided a 

thorough, well-reasoned decision denying Sanford’s request to inspect the affidavits 

and participate in the routine redaction of certain personally identifying 

information. In considering Sanford’s request to participate in the redaction process 

before unsealing the affidavits, the court determined that it was appropriate for the 

court, rather than Sanford, to redact any “personally identifying information,” such 

as “personal email addresses, home addresses, phone numbers, and birth dates.” In 

doing so, the court aptly expressed concerns that allowing the parties to participate 

in the redaction process would further extend the litigation and unnecessarily delay 

the unsealing of the affidavits required by SDCL 23A-35-4.1. The court also 

identified the greater potential for premature leaks of the information if the 

affidavits were provided to the parties. Finally, the court noted that the affidavits 

contained personally identifying information of others whose participation may also 

be required if the court granted Sanford’s request. The court concluded that “each 

of these problems can be avoided if the [c]ourt and its staff simply make these 

redactions which they routinely and frequently make without participation by the 

interested parties.”

[¶22.] The only significant change between Implicated Individual I and now 

is a factual one—the State has terminated its investigation, triggering the 

unsealing of the affidavits in support of search warrants under SDCL 23A-35-4.1 

and the circuit court’s amended court orders. The circuit court properly applied the 

provisions of SDCL 15-15A-13 and SDCL 23A-35-4.1 in considering, and ultimately 

denying, Sanford’s request to inspect and redact the affidavits before they are 
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unsealed. Before ruling on the request, the court thoroughly considered the various 

statutory and constitutional grounds asserted by Sanford with respect to 

information that could conceivably be contained in the affidavits. The court’s 

approach to redaction fell soundly within its discretion, and the court appropriately 

exercised its discretion to “decide whether there [were] sufficient grounds to 

prohibit access . . . .” to contents of the affidavits under SDCL 15-15A-13.

[¶23.] Affirmed.

[¶24.] KERN, DEVANEY, and MYREN, Justices, and GILBERTSON, 

Retired Chief Justice, concur.

[¶25.] GILBERTSON, Retired Chief Justice, sitting for SALTER, Justice, 

who recused himself and did not participate in this matter.