The South Dakota Supreme Court ruled that pardons granted at the sole discretion of the governor must be made public, while those initiated by the state board of pardons can be sealed.


State Supreme Court orders unsealing of pardons

Reporters Committee for Freedom of the Press

(May 6, 2004) — The South Dakota Constitution does not grant the governor authority to seal pardons he or she independently grants to those who have committed a crime, the state Supreme Court unanimously held yesterday.

South Dakota’s high court did not address the public’s right of access to government information — the criminal records of those pardoned were also sealed — despite a friend-of-the-court brief filed by numerous media groups, including The Reporters Committee for Freedom of the Press. Instead, the Supreme Court simply held that the governor’s authority to grant pardons is not unlimited.

“Though the governor may freely grant pardons, there is nothing in our Constitution, statutes or case law which treats the pardon, once granted, as also the personal domain of the governor,” wrote Chief Justice David Gilbertson, in overturning a circuit court ruling.

Attorney Thomas Wilka, who represented nine people pardoned by former Gov. Bill Janklow, said he won’t ask for a rehearing. Wilka argued in court that those pardoned have a right of privacy; their identities and convictions should be shielded from the public, he said.

“I thought it would have been a closer call,” said Wilka, who jokingly referred to himself as “the enemy of openness.”

In January 2003, the Sioux Falls Argus Leader asked Secretary of State Chris Nelson for a list of people pardoned by the governor from 1995 to 2002. Approximately 279 pardons were granted during that time, however each file was sealed by order of Janklow, who served during that seven-year span.

Janklow, a Republican, was elected to the U.S. House of Representatives in 2002, but resigned this past January after being convicted of felony manslaughter in a fatal crash with a motorcyclist. He’s currently serving a 100-day sentence.

Nelson sought an opinion from state Attorney General Larry Long, who in February 2003 said only pardons that were initiated by the South Dakota Board of Pardons and Paroles could be sealed by the governor. Pardons granted under the sole discretion of the governor must be made public, Long wrote.

Wilka brought suit against Nelson and the Board of Pardons, winning a restraining order against unsealing the records. Judge Glen Severson of Circuit Court in Minnehaha held that the state Constitution granted the governor total authority over the pardon process.

The South Dakota Supreme Court disagreed, holding that the state has a “two-prong pardon system.” A 1984 amendment to the state Constitution only allowed the sealing of pardons that involved the board, not those granted at the sole discretion of the governor, the court ruled.