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Thursday, February 16, 2006


What is a nation of laws when the laws are bad?

[With huge thank yous to Ann, who prefers no further identification, and colleagues.]

You don't have to be a lawyer to understand South Dakota's Codified Laws, but it helps if you read Sanskrit and are bipolar. They are the fundamental reason that a Ford Foundation- sponsored study ranks South Dakota as the worst state in the nation for open, responsible government, access by citizens to information and equal justice, and accountability.

You ask, if the laws are so bad, why have they not been changed or challenged? They have not been changed because there is a powerful faction and their friends in government who benefit from them. I do not know why they have not been challenged.

Here is the situation regarding how a challenge might be mounted. The U.S. Constitution has a clause which says that it , and any laws carrying out and putting into effect its principles are the law of the land. If states pass laws that are contradictory to the Constitution, those laws are overruled.

Based upon laws made to put Constitutional principles into effect, the public is provided ways to require and obtain accountability from government. When state laws do not provide access and accountability, federal law takes precedent. South Dakota laws not only do not provide access, but the state has laws on the books and in the making that deny the principle of open government. During this legislative session, law makers in Pierre have made proposals and statements that show they either are totally ignorant of democratic accountability or are dead set on eliminating it.

The biggest problem, however, involves police investigations. Police are given discretion about revealing the progress and results of their investigations in order to keep ongoing investigations from being compromised. Because of the way South Dakota law is stated, many departments assume that the criminal justice information they accrue can be hidden from the public at their will. Here is the statute that requires open records:

1-27-1. Records open to inspection--Sale of lists. If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours. Any employment examination or performance appraisal record maintained by the Bureau of Personnel is excluded from this requirement.

Here is the statute as it applies to municipalities:

9-18-2. Records of acts and proceedings of municipal officers--Open to public. Every municipal officer shall keep a record of the official acts and proceedings of his office, and such record shall be open to public inspection during business hours under reasonable restrictions.

But here is the law that exempts some records from being available for scrutiny:

1-27-3. Records declared confidential or secret. Section 1-27-1 shall not apply to such records as are specifically enjoined to be held confidential or secret by the laws requiring them to be so kept.

And here is the law that applies to criminal investigations:

23-5-11. Confidential criminal justice information not subject to inspection--Exception. The provisions of § 1-27-1 do not apply to confidential criminal justice information. Information about calls for service revealing the date, time, and general location and general subject matter of the call is not confidential criminal justice information and may be released to the public, at the discretion of the executive of the law enforcement agency involved, unless the information contains intelligence or identity information that would jeopardize an ongoing investigation. The provisions of this section do not supersede more specific provisions regarding public access or confidentiality elsewhere in state or federal law.

The application of this law hinges on the definition of "confidential criminal justic information and what makes it confidential. The definition provided by law does not clarify that:

23-5-1o (1) "Confidential criminal justice information," criminal identification information compiled pursuant to chapter 23-5, criminal intelligence information, criminal investigative information, criminal statistics information made confidential pursuant to § 23-6-14, and criminal justice information otherwise made confidential by law;

You see, the laws above refer to information made confidential by law, but there are no laws that set the rules for when criminal justice information can be made confidential and when such information must be released to the public so that voters can know what their employees are doing and how well or badly they are doing it. The same applies to information about personnel. The crooked and the incompetent are exempted from accountability by laws that keep acts inside government from public knowledge.

The Morgan Lewis case in Aberdeen is typical. Nearly everybody knows that this case has been bungled. Nothing coming out of city hall about it is trusted. A couple of would be dictators who should be accountable to the public think that there are things the public does not need to know. For example, two police officers were fired and then their firings were determined to be wrongful. The city has had to pay settlements in the cases. In other instances, personnel have resigned. There is clearly gross incompetence, bureaucratic intrigue, massive violations of the public trust, and a flouting of democratic principles going on here, but it is hidden behind bad laws. Precisely what the public should know is hidden.

Meanwhile, down in Pierre, the state legislature is working to compound the bad laws and make even worse ones.

South Dakota is a police state. The people are prevented from information and knowledge about their government and miscreants cannot be held accountable for incompetence and misdeeds.

As those ridiculous red buttons sported around town say, Life is great in Aberdeen. We add, If you dislike democracy and principle.

How can South Dakota come out of the Third World? We reprint this provision of law:

23-5-11. The provisions of this section do not supersede more specific provisions regarding public access or confidentiality elsewhere in state or federal law.

By making specific provisions regarding public access, confidentiality can be applied when needed, but in the end, all information affecting the public interest and well-being must be made open.

Whether South Dakota remains a police state or not rests with the will of the people.

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