797 N.W.2d 77
S.D.2011Background
- Russell, SD attorney and state legislator, faced a single disciplinary proceeding arising from two main actions during tenure as Fall River County State’s Attorney: use of a grand jury to investigate a controversial golf-course project and disclosure of grand jury transcripts; and a December 2008 press release criticizing Judge Jeff Davis in the Fast Horse homicide case.
- The grand jury investigation targeted the Simunek golf-course contract, with Russell consulting a campaign ally who acted as an expert and potentially influenced grand jury direction.
- Russell helped draft and attempt to settle the Simunek case, including terms that would unseal grand jury transcripts and release related materials, contrary to SDCL 23A-5-16 and related rules.
- Russell opened grand jury transcripts to the public via his website and news outlets, and later sought and obtained a court order enabling public access, which Prematurely broadened access beyond legitimate prosecutorial purpose.
- During the Fast Horse case, Russell issued a December 2008 press release criticizing Judge Davis for trial delays, which raised concerns about extrajudicial statements by prosecutors and potential improper conduct.
- The Referee recommended public censure, noting violations of Rules of Professional Conduct 3.8, 4.4, 8.2, and 8.4, and that the misconduct was mitigated by lack of prior discipline and cooperation; the Supreme Court ultimately imposed public censure and ordered costs paid by Russell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether release of grand jury transcripts violated law | Disciplinary Board argues violation of SDCL 23A-5-16 | Russell contends public access served the public interest | Public censure justified for grand jury disclosure |
| Whether the plea-accord terms and order affecting grand jury transcripts violated law | Prosecution sought to expose transcripts and influence proceedings | Defendant and counsel not responsible for procedural irregularities | Disciplinary sanction appropriate due to improper disclosure actions |
| Whether the press release about Judge Davis violated ethical duties | Release undermined judicial integrity and misled public | Speech protected as part of prosecutorial advocacy | Public censure warranted for statements about a judge |
| Whether due process was violated in procedures | Board provided adequate notice and opportunity to respond | Procedures deficient or biased | Due process satisfied; no reversible defect found |
| What discipline is appropriate? | Public censure with conditions (as urged by some) | Censure could be more or less severe | Public censure appropriate; costs assessed; no private reprimand |
Key Cases Cited
- In re Kunkle, 88 S.D. 269 (S.D. 1974) (discipline standard; due process; court review of referee findings)
- In re Laprath, 2003 S.D. 114 (S.D. 2003) (weight given to referee; standard of review in disciplinary matters)
- In re Dorothy, 2000 S.D. 23 (S.D. 2000) (mitigating factors; public censure contexts)
- State v. Brandenburg, 344 N.W.2d 702 (S.D. 1984) (prosecutor duties and professional responsibility of prosecutors)
- State v. Penkaty, 708 N.W.2d 185 (Minn. 2006) (prosecutor is minister of justice; duties to disclose exculpatory information)