Argus Leader Media v. Hogstad ( 2017 )

#27903-r-GAS
2017 S.D. 57IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
ARGUS LEADER MEDIA, Plaintiff and Appellant,
v.
LORIE HOGSTAD, in her official
capacity as Sioux Falls City Clerk,
TRACY TURBAK, in his official
capacity as Sioux Falls Finance
Officer, and CITY OF SIOUX FALLS, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE JOHN PEKAS
Judge
****
JON E. ARNESON
Sioux Falls, South Dakota Attorney for plaintiff and
appellant.
JAMES E. MOORE
JORDAN J. FEIST of
Woods, Fuller, Shultz &
Smith PC
Sioux Falls, South Dakota Attorneys for defendants and
appellees.
****
ARGUED JANUARY 11, 2017
OPINION FILED 09/20/17
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SEVERSON, Justice
[¶1.] The City of Sioux Falls entered into a confidential settlement
agreement with several contractors that built the Denny Sanford Premier Center in
Sioux Falls, S.D. The settlement agreement’s confidentiality clause provided that,
with the exception of the settlement amount, the details of the contract would
remain confidential. A reporter for the Argus Leader sought a copy of the
agreement; the City denied the request. The Argus Leader asked the City to
reconsider its position, but the City refused to provide a copy of the agreement.
After the denial, the Argus Leader commenced this action, alleging that the
agreement is a public record and seeking an order compelling the City to provide a
copy. The circuit court determined that the settlement agreement was not open to
public inspection under SDCL chapter 1-27. Argus Leader appeals. We reverse.
Background
[¶2.] In 2014, the City of Sioux Falls raised questions regarding the
aesthetic appearance of the exterior siding of the newly constructed Denny Sanford
Premier Center. The City reached a settlement agreement with the general
contractor and four subcontractors of the project. The agreement addressed both
the final amounts due and the City’s dissatisfaction with the work. One of the
subcontractors later disputed the terms of the agreement. The City retained
outside counsel, who drafted a complaint to enforce the settlement agreement.
However, after further negotiation, the parties to the original agreement reached
another settlement agreement. The City’s outside counsel sent the drafted
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complaint with an admission of service to one of the subcontractors, but it did not
commence a lawsuit prior to settlement.
[¶3.] In September 2015, the City announced through its website that it had
reached a global settlement of the dispute with the contractors of the Premier
Center. In October, a reporter for the Argus Leader contacted the city attorney and
requested a copy of the settlement between the City and the contractors involved in
construction of the Premier Center. The city attorney denied the request, citing
SDCL 1-27-1.5(20) and the agreement’s confidentiality provision as grounds for the
denial. The reporter sent another letter asking for the City to reconsider the denial.
Again, the City denied the request. On December 1, 2015, pursuant to SDCL 1-27-
38, the Argus Leader commenced a civil action contending that the agreement is a
public record and asking that the court order the City to produce a copy of the
agreement.
[¶4.] Both the Argus Leader and the City moved for summary
judgment. The circuit court denied the Argus Leader’s motion and granted
summary judgment in favor of the City. The court found that pursuant to
SDCL 1-27-1.5(20), the contract is not open to public inspection. On appeal,
the Argus Leader contends the court erred when it determined that the
contract is not an open record. Furthermore, the Argus Leader contends that
even if the circuit court correctly interpreted SDCL 1-27-1.5(20), more specific
provisions provide that the settlement agreement is an open public record.
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Standard of Review
[¶5.] We review the circuit court’s grant of summary judgment de novo to
determine whether genuine issues of material fact exist and whether the court
correctly applied the law. Heitmann v. Am. Family Mut. Ins. Co., 2016 S.D. 51, ¶ 8,
883 N.W.2d 506, 508-09. When there are no material facts in dispute, our review is
limited to determining whether the court correctly applied the law. Id. at 509.
Analysis
[¶6.] In 2009, the Legislature enacted the South Dakota Public Records Act,
which broadened the presumption of openness in regard to public records. Mercer v.
S.D. Att’y Gen. Off., 2015 S.D. 31, ¶ 17, 864 N.W.2d 299, 303; see also SDCL chapter
1-27. SDCL 1-27-1 provides:
Except as otherwise expressly provided by statute, all citizens of
this state, and all other persons interested in the examination of
the public records, as defined in § 1-27-1.1, are hereby fully
empowered and authorized to examine such public record, and
make memoranda and abstracts therefrom during the hours the
respective offices are open for the ordinary transaction of
business and, unless federal copyright law otherwise provides,
obtain copies of public records in accordance with this chapter.
Each government entity or elected or appointed government
official shall, during normal business hours, make available to
the public for inspection and copying in the manner set forth in
this chapter all public records held by that entity or official.
SDCL 1-27-1.1 states, in relevant part:
Unless any other statute, ordinance, or rule expressly provides
that particular information or records may not be made public,
public records include all records and documents, regardless of
physical form, of or belonging to this state, any county,
municipality, political subdivision, or tax-supported district in
this state, or any agency, branch, department, board, bureau,
commission, council, subunit, or committee of any of the
foregoing.
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Other than SDCL 1-27-1.5(20), the City does not contend that “any other statute,
ordinance, or rule expressly provides” that the contract “may not be made public.”
SDCL 1-27-1.5 states, in relevant part,
The following records are not subject to §§ 1-27-1, 1-27-1.1, and
1-27-1.3: . . .
(20) Any document declared closed or confidential by court
order, contract, or stipulation of the parties to any civil or
criminal action or proceeding[.]
[¶7.] The dispute over SDCL 1-27-1.5(20) arises from an ambiguous trailing
modifier. The parties dispute whether the phrase “of the parties to any civil or
criminal action or proceeding” modifies “contract” or only “stipulation[.]” The City
maintains that the circuit court correctly determined that “The Doctrine of the Last
Antecedent” controls the matter; the phrase only modifies “stipulation.” “Under the
rule [of the last antecedent], the modifying clause is confined to the last antecedent,
unless there is something in the [subject matter or] dominant purpose of the
provision that requires a different interpretation.” Hoglund v. Dakota Fire Ins. Co.,
2007 S.D. 123, ¶ 21, 742 N.W.2d 853, 859 (citing Rogers v. Allied Mut. Ins. Co., 520
N.W.2d 614, 617 (S.D. 1994)); see also Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 146 (2012). Thus, the City argues, the
contract falls within “any document [that has been] declared closed or confidential
by . . . contract,” because it declares itself confidential. According to the Argus
Leader, the phrase “of the parties to any civil or criminal action or proceeding”
modifies “contract” as well. The Argus Leader contends that using the rule of the
last antecedent would unreasonably expand the provision by allowing the
government to contract around the entirety of the Public Records Act and that the
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Public Records Act’s primary purpose requires an interpretation different than that
given SDCL 1-27-1.5(20) by the circuit court. Therefore, in this case, the Argus
Leader maintains that the contract remains an open record because none of the
parties to the contract commenced litigation.
[¶8.] Typically, the syntactic canons applicable to this type of phrasing
would be the “Last Antecedent Canon” 1 or “Series-Qualifier Canon.” 2 See Scalia &
Garner, supra ¶ 7, at 144-151. Those canons would generally call for the phrase “of
the parties” to modify either the word “stipulation” alone or to modify each of the
words: “court order”; “contract”; and “stipulation.” However, Scalia and Garner
recognize that “[p]erhaps more than most of the other canons, [the series-qualifier
canon] is highly sensitive to context. Often the sense of the matter prevails.” Id. at
150. Clearly, “of the parties to any civil or criminal action or proceeding” cannot
modify “court order.” The City asserts that the “Legislature could have written the
statute such that the phrase ‘of the parties to any civil or criminal action or
proceeding’ would modify the word ‘contract.’ Instead the Legislature placed the
1. “Strictly speaking, only pronouns have antecedents, and the [Nearest-
Reasonable-Referent] [C]anon . . . also applies to adjectives, adverbs, and
adverbial or adjectival phrases—and it applies not just to words that precede
the modifier, but also to words that follow it.” Scalia & Garner, supra ¶ 7,
at 152. Although we are dealing with a modifier that would seem to fall
under this canon, the nearest-reasonable-referent canon does not apply
because the statute contains a parallel series of nouns. See id. (“When the
syntax involves something other than a parallel series of nouns or verbs, a
prepositive or postpositive modifier normally applies only to the nearest
reasonable referent.”).
2. The “Series-Qualifier Canon” provides that “when there is a straightforward,
parallel construction that involves all nouns or verbs in a series, a prepositive
or postpositive modifier normally applies to the entire series.” Scalia &
Garner, supra ¶ 7, at 147 (emphasis added).
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modifier at the end of the sentence and isolated the word ‘contract’ between
commas.”
[¶9.] Nevertheless, comma placement is not dispositive. Punctuation may
be a useful tool to interpret statutes, but is not necessarily determinative. See
SDCL 2-14-8 (“Punctuation shall not control or affect the construction of any
provision when any construction based on such punctuation would not conform to
the spirit and purpose of such provision.”); see also Scalia & Garner, supra ¶ 7, at
140-43 (explaining that sometimes the court is “textually justified in ignoring the
grammarian’s reading” and must “override[] punctuation”). Grammatical rules “can
be overcome by other textual indications of meaning. . . . Grammatical usage is one
of the means (though not the exclusive means) by which the sense of a statute is
conveyed.” Scalia & Garner, supra ¶ 7, at 140-41. As we have explained, “[s]ince
statutes must be construed according to their intent, the intent must be determined
from the statute as a whole, as well as enactments relating to the same subject. In
construing statutes together it is presumed that the legislature did not intend an
absurd or unreasonable result.” Hayes v. Rosenbaum Signs & Outdoor Advert., Inc.,
2014 S.D. 64, ¶ 28, 853 N.W.2d 878, 885 (quoting Martinmaas v. Engelmann, 2000
S.D. 85, ¶ 49, 612 N.W.2d 600, 611).
[¶10.] Rather than syntactic canons, our interpretation of SDCL 1-27-1.5(20)
relies on contextual canons. See Scalia & Garner, supra ¶ 7, at 167-69 (discussing
“whole–text canon”). In this case, the subject matter and dominant purpose of the
Public Records Act require a different interpretation than that advanced by the
City. See Hoglund, 2007 S.D. 123, ¶ 21, 742 N.W.2d at 859. We are guided by the
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presumption of openness in SDCL 1-27-1 and the directive in SDCL 1-27-1.3 to
construe certain provisions—including SDCL 1-27-1.5—liberally in favor of open,
public records. SDCL 1-27-1.3 provides in part:
The provisions of §§ 1-27-1 to 1-27-1.15, inclusive, and 1-27-4
shall be liberally construed whenever any state, county, or
political subdivision fiscal records, audit, warrant, voucher,
invoice, purchase order, requisition, payroll, check, receipt, or
other record of receipt, cash, or expenditure involving public
funds is involved in order that the citizens of this state shall
have the full right to know of and have full access to information
on the public finances of the government and the public bodies
and entities created to serve them.
There is no question that in this case we are dealing with a record of an expenditure
involving public funds. Therefore, in accordance with that presumption of openness
and the requirement that we construe the statute liberally in favor of openness, we
must narrowly construe the exception with subdivision (20). 3 In doing so, we grant
the exception, which could have more than one interpretation, a meaning that does
not render the entire statute ineffective. See Scalia & Garner, supra ¶ 7, at 63-65
(presenting a presumption against ineffectiveness as a fundamental principle of
3. The dissent asserts that a presumption of openness does not apply to the
exceptions. Infra ¶¶ 25-26. The dissent’s approach construes the exception
in isolation. Instead, we construe the provision narrowly in light of the whole
enactment. The relevant statutes were all passed in one legislative
enactment in 2009. 2009 S.D. Sess. Laws ch. 10. Such a proposition is
hardly “breathtaking” considering the Legislature has explicitly mandated
that the exception be construed in such a way. SDCL 1-27-1.3 requires this
Court to “liberally construe[]” SDCL 1-27-1.5 “in order that the citizens of
this state shall have the full right to know of and have full access to
information on the public finances of the government and the public bodies
and entities created to serve them.” Construing the exception solely in the
light of the exception’s purpose to exclude ignores the Legislature’s direction
and creates an exception that swallows the Public Record Act’s provisions.
Such a construction would result in an absurd reading of an ambiguous
statute.
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statutory interpretation). Such a construction leads us to conclude that the
modifier applies to “contract” as well as “stipulation.”
[¶11.] The context of subdivision (20) does not indicate the Legislature
intended to create a broad exception allowing the government to execute a contract
declaring “[a]ny document . . . closed or confidential[.]” To read SDCL 1-27-1.5(20)
in such a manner would be contrary to the presumption of openness. It would also
be contrary to the Legislature’s directive that we construe SDCL 1-27-1.5 “in order
that the citizens of this state shall have the full right to know of and have full
access to information on the public finances of the government and the public bodies
and entities created to serve them.” SDCL 1-27-1.3. Instead, it is clear that the
context of subdivision (20) contemplates documents pertaining to the judicial
process rather than allowing the government to conceal “any document” that it
possesses and does not wish to disclose.
[¶12.] Therefore, the modifier “of the parties to any civil or criminal action or
proceeding” modifies “contract.” Here, the city and contractors were not parties to a
civil or criminal proceeding. See SDCL 1-27-1. Accordingly, the City must make
the settlement contract “available to the public for inspection and copying in the
manner set forth in . . . chapter [1-27].” The City notes that it was ready to begin
litigation over the matter and that enforcing the provision in this way will lead to
an odd result that discourages parties from settling potential lawsuits.
Nevertheless, we confine ourselves to what the Legislature said “rather than what
[we] think it should have said[.]” Martinmaas, 2000 S.D. 85, ¶ 49, 612 N.W.2d at
611 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17). Nothing
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within the Public Records Act would suggest that the Legislature contemplated
anticipated litigation, as opposed to commenced litigation, when it enacted this
exception, and thus, this contract remains an open record.
[¶13.] Finally, the Argus Leader also maintains that the provisions of SDCL
9-14-17; 9-14-21; and 9-18-2 are more specific statutes that control this matter. See
SDCL 1-27-33 (“The provisions of this chapter do not supersede more specific
provisions regarding public access or confidentiality elsewhere in state or federal
law.”). SDCL 9-14-17 provides:
The municipal finance officer shall keep an office at a place
directed by the governing body. The finance officer shall keep
the corporate seal, all papers and records of the municipality,
and a record of the proceedings of the governing body, whose
meetings the finance officer shall attend. The finance officer
shall draw and countersign all warrants on the treasury in
pursuance of orders or resolutions of the governing body and
keep a full and accurate account of all such warrants in books
provided for that purpose. The finance officer shall make or
cause to be made estimates of the expenses of any work to be
done by the municipality and countersign all contracts made on
its behalf and certificates of work authorized by any committee
of the governing body or by any municipal officer. However, the
finance officer may destroy any record which the records
destruction board, acting pursuant to § 1-27-19, declares to have
no further administrative, legal, fiscal, research, or historical
value.
SDCL 9-14-21 states:
The municipal finance officer shall examine all reports, books,
papers, vouchers, and accounts of the treasurer; audit and
adjust all claims and demands against the municipality before
they are allowed by the governing body; and keep a record of the
finance officer’s acts and doings. The finance officer shall keep a
book in which the finance officer shall enter all contracts. The
book shall include an index to the contracts and shall be open to
the inspection of all parties interested. The finance officer shall
perform such other duties as may be required by ordinance,
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resolution, or direction of the governing body. However, the
finance officer may destroy any record which the Records
Destruction Board, acting pursuant to § 1-27-19, declares to
have no further administrative, legal, fiscal, research, or
historical value.
Finally, SDCL 9-18-2 states: “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.”
[¶14.] The Argus Leader is correct that these statutes deal more specifically
with certain aspects of municipalities and their record keeping. The circuit court
determined that nothing within SDCL 9-14-17; 9-14-21; or 9-18-2 requires the
municipality to provide the contract for inspection. However, we need not address
whether the court was correct in its decision on the scope of the statutes. Those
three statutes do not conflict with our reading of SDCL 1-27-1.5. Accordingly, we
need not address the Argus Leader’s final argument.
Conclusion
[¶15.] The settlement contract between the City and the contractors of the
Denny Sanford Premier Center does not meet the requirements under SDCL 1-27-
1.5(20). Therefore, it is a public record open to inspection, and the City must make
it available in accordance with SDCL chapter 1-27.
[¶16.] GILBERTSON, Chief Justice, and KERN, Justice, and KONENKAMP,
Retired Justice, concur.
[¶17.] KONENKAMP, Retired Justice, sitting for WILBUR, Retired Justice,
disqualified.
[¶18.] ZINTER, Justice, dissents.
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ZINTER, Justice (dissenting).
[¶19.] The Court’s interpretation of a statute today requires the removal of a
comma and the addition of words to the text. The Court states that it is guided by
the purpose of a general act rather than the statutory language we must interpret.
Using an act’s general purpose to change text is a breathtaking proposition. It
should be so because, as this case demonstrates, the Court’s interpretation makes
other statutory language meaningless; it is based on a “guiding purpose” that is
necessarily contrary to the purpose of the language that is being construed; and it
eschews well-accepted rules of statutory and grammatical construction. For these
reasons, I respectfully dissent.
[¶20.] In 2009, the Legislature revised South Dakota’s public records laws.
See 2009 S.D. Sess. Laws ch. 10 (the Act). As codified, the general Act first defines
government records that are subject to public disclosure. SDCL 1-27-1.1. It then
sets forth twenty-seven exceptions. SDCL 1-27-1.5 (providing that the excepted
documents are not “subject to” the public disclosure statute and are not “subject to”
SDCL 1-27-1.3, the statute requiring liberal construction). The exception at issue in
this dispute concerns the following kinds of documents:
Any document declared closed or confidential by court order,
contract, or stipulation of the parties to any civil or criminal
action or proceeding . . . .
SDCL 1-27-1.5(20) (emphasis added).
[¶21.] The question is whether the exception for contracts is limited to
contracts made by parties in civil or criminal litigation. This is a question of
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standard English: is the noun “contract” modified by the trailing prepositional
phrase “of the parties to any civil or criminal action or proceeding”?
[¶22.] Subdivision (20) lists three methods by which government documents
become closed or confidential, and each method is separated by a comma: “court
order, contract, or stipulation.” Id. The modifying prepositional phrase is attached
to only the last noun, “stipulation.” Id. Under any understanding of standard
English, a modifying prepositional phrase at the end of a series of parallel nouns
modifies either the last noun in the series (stipulation) or all nouns in the series
(court order, contract, and stipulation)—i.e., the grammatical rule of the last
antecedent. See infra ¶ 28. Thus, if the Court is correct that the prepositional
phrase modifies more than the last noun (stipulation), then the phrase must modify
all three nouns, including the first (court order). But as the Court correctly
observes, such a result would be absurd. 4 Obviously, there can be no “court order of
the parties to any civil or criminal action or proceeding.” Only a court may enter a
court order. Therefore, under standard English, the modifying prepositional phrase
cannot modify “contract.”
[¶23.] Nevertheless, the Argus Leader argues we should just construe the
statute to have the prepositional phrase modify two (but not all three) of the listed
nouns. The Argus Leader not only fails to cite any rule or understanding of English
that supports its proposed ad hoc modification of a serial list of nouns, it contends
4. When using canons of construction to interpret statutes together, we should
do so in a way that does not lead to “an absurd or unreasonable result.” See
Hayes v. Rosenbaum Signs & Outdoor Advert., Inc., 2014 S.D. 64, ¶ 28,
853 N.W.2d 878, 885.
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the second comma in the series should be “ignored or treated as a mistake.” The
Court agrees to remove the comma between “contract” and “stipulation.” The Court
does so “guided by” the general Act’s “presumption of openness.” Supra ¶ 10.
[¶24.] The Court must also add additional words to the statute. The only way
to grammatically modify the last two of the three nouns is to not only delete the
second comma, but also read the words “or by” into the text. Thus, the Court
amends the statute’s text to read as follows (with its additional words italicized and
its deleted punctuation stricken):
Any document declared closed or confidential by court order, or
by contract, or stipulation of the parties to any civil or criminal
action or proceeding.
This type of judicial “construction” is not permitted. We do not, under the guise of
judicial construction, add or delete text. In re Marvin M. Schwan Charitable
Found., 2016 S.D. 45, ¶ 23, 880 N.W.2d 88, 94; State v. Moss, 2008 S.D. 64, ¶ 15,
754 N.W.2d 626, 631; see also City of Deadwood v. M.R. Gustafson Family Tr.,
2010 S.D. 5, ¶ 9, 777 N.W.2d 628, 632.
[¶25.] The Court’s construction also renders the word “contract” meaningless.
In the context of litigation, a contract and a stipulation are the same thing:
agreements of the parties. Because agreements to make documents confidential by
stipulation are expressly limited to those agreements made by parties in litigation,
construing that same limitation into contractual agreements adds nothing to the
statute. A contractual agreement to confidentiality is a stipulation to
confidentiality. Thus, declaring a document closed or confidential by “contract”
becomes meaningless and is surplusage under the Court’s construction. The Argus
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Leader conceded this point in oral argument. We should not “assume that the
Legislature intended [any] part of [this] statutory scheme be rendered mere
surplusage.” See Pitt-Hart v. Sanford USD Med. Ctr., 2016 S.D. 33, ¶ 13,
878 N.W.2d 406, 411.
[¶26.] The Court contends that removing the comma is warranted by SDCL
2-14-18. Supra ¶ 9. The Court correctly notes that under SDCL 2-14-8,
punctuation “shall not control or affect the construction of any provision when any
construction based on such punctuation would not conform to the spirit and purpose
of such provision.” (Emphasis added.) But here, the Court’s removal of the comma
is not based on the spirit and purpose of such provision; i.e., the legislative
exception in SDCL 1-27-1.5(20). It is based on a presumption of openness that the
Court takes from other provisions in the general act. Moreover, the Legislature
expressly set aside the general Act’s “presumption of openness” when it enacted the
exceptions. SDCL 1-27-1 (“Except as otherwise expressly provided by statute, . . . all
citizens . . . are authorized to examine . . . public records . . . .” (emphasis added));
SDCL 1-27-1.5 (“The following records are not subject to §§ 1-27-1, 1-27-1.1, and 1-
27-1.3 . . . .” (emphasis added)). By using a purpose that is necessarily contrary to
the purpose of the language that is being construed, the Court disregards rather
than ascertains legislative intent.
[¶27.] The Court also contends its changes to the text are warranted by the
general Act’s “whole-text,” which includes the “presumption of openness.” Supra
¶ 10 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 167-169 (2012)). In my view, the Court misapplies the “whole-text”
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canon authority it cites. The Legislature enacted the exceptions for the purpose of
limiting the general rule of openness. See SDCL 1-27-1.5 (“The following records
are not subject to §§ 1-27-1, 1-27-1.1, and 1-27-1.3 . . . .” (emphasis added)).
Therefore, in the words of the Court’s own authority, focusing on the purpose of the
general act rather than the limiting exception abuses the whole-text canon. See
Scalia & Garner, supra, at 168. “[L]imitations on a statute’s reach are as much a
part of the statutory purpose as specifications on what is to be done.” Id. “It is not
a proper use of the [whole-text] canon to say that since the overall purpose of the
statute is x, any interpretation of the text that limits the achieving of x must be
disfavored.” Id. But that is exactly how the Court uses the whole-text canon to
construe the exception, 5 a use we have expressly rejected. In re Expungement of
Oliver, 2012 S.D. 9, ¶ 9, 810 N.W.2d 350, 352 (“[I]t is inappropriate to select one
statute on a topic and disregard another statute which may modify or limit the
effective scope of the former statute.”).
[¶28.] This case should be resolved using standard English. We should apply
the well-accepted rule of the last antecedent: “[I]t is the general rule of statutory as
well as grammatical construction that a modifying clause is confined to the last
antecedent unless there is something in the subject matter or dominant purpose
which requires a different interpretation.” Kaberna v. Sch. Bd. of Lead–Deadwood
5. The Court also attempts to justify its use of the whole-text canon by noting
that SDCL 1-27-1.3 requires courts to liberally construe the Act. See supra
n.3 (citing SDCL 1-27-1.3). But SDCL 1-27-1.3 does not apply. The
Legislature specifically provided that the exceptions in SDCL 1-27-1.5 “are
not subject to” SDCL 1-27-1.3. Moreover, even if liberal construction were
required, liberal construction does not justify a court’s removal of punctuation
and addition of text.
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Sch. Dist. 40-1, 438 N.W.2d 542, 543 (S.D. 1989) (emphasis added). Here, the
express purpose of SDCL 1-27-1.5 is to exclude certain government documents from
the general presumption of openness, a purpose that is consistent with the
exception. Therefore, we should hold that the phrase “of the parties to any civil or
criminal action or proceeding” modifies only “stipulation,” the last antecedent. It is
only by using this usual and ordinary understanding of the English language that
we avoid making changes in punctuation and text; avoid creating absurdities; and
avoid rendering other text meaningless.
[¶29.] The Argus Leader argues the exception in SDCL 1-27-1.5(20) is a bad
law that was poorly drafted and needs revision. But under our Constitution, it is
not this Court’s role to fix poorly drafted statutes—the “power to fix statutes
substantively would give the Judicial Branch too much leeway to prefer its views
about what makes for ‘good’ laws over those of the Legislative Branch.” Jaskolski v.
Daniels, 427 F.3d 456, 462 (7th Cir. 2005).
[¶30.] “Contract” means “contract.” Because the Legislature authorized
government entities to enter into confidential settlement contracts without having
to start a lawsuit, we should affirm the circuit court. The Argus Leader’s request to
change the punctuation and text of the statute should be made to the Legislature,
not the courts.
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