Argus Leader Media v. HogstadArgus Leader Media v. Hogstad
Lead Opinion
[¶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 cópy 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. Tlje 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 ■ tjie 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 sеttlement agreement. The City’s outside counsel sent the drafted-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 Cen
[¶4.] Both the Argus Leader and the City movеd 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
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.,
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.,
Except as otherwise expressly provided by statutе, 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.
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, politicаl 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.
Other than
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
[¶8.] Typically, the syntactic canons applicable to this type of phrasing would be the “Last Antecedent Canon”
[¶10.] Rather than syntactic canons, our interpretation of
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 оpenness and the requirement that we construe the statute liberally in favor of openness, we must narrowly construe the exception with subdivision (20).
[¶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
[¶12.] Therefore, the modifier “of the parties to any civil or criminal action or proceeding” modifies “contract.” Here, the city and contractors were nоt parties to a civil or criminal proceeding. See
[¶13.] Finally, the Argus Leader also maintains that the provisions of
The municipal finаnce officer shall keep an office át 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 nо further administrative, legal, fiscal, research, or historical value.
The municipal finance officer shall examine all reports, books, papers, vouchers, and accounts of the treasurer; audit and adjust all claims and demands againstthe 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, resolution, or direction of the governing body. However, the finance officer may destroy any record which the Recoi'ds Destruction Board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historical value.
Finally,
[1Í14.] 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
Conclusion
[¶15.] The settlement contract between the City and the contractors of the Denny Sanford Premier Center does not meet the requirements under
Notes
. "Strictly speaking, only pronouns have antecedents, and the [Nearest-Reasonable-Refor-ent] [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 pаrallel 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”).
. 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).
. The dissent asserts that a presumption of openness does not apply to the exceptiоns. 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.
Dissenting Opinion
(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 eh. 10 (the Act), As codified, the general Act first defines government records that are subject to public disclosure.
Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proсeeding ....
[¶21.] The question is whether the exception for contracts is limited to contracts
[¶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 prepositionаl 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 Cоui’t correctly observes, such a result would be absurd.
[¶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 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 wоrds'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.,
[¶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 tó confidentiality. Thus, declaring a document closed or confidential by “contract” becomes meaningless and is surplusage under the Court’s construction. The Argus Leader conceded
[¶26.] The Court contends that removing the comma is warranted by
[¶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” canon authority it cites. The Legislature enacted the exceptions for the purpose of limiting the general rule of openness. See
[¶28.] This case should be resolved using standard English. We should apply the well-accepted rule of the last аntecedent: “[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 Sch. Dist. 40-1,
[1129.] The Argus Leader argues the exception in
[1130.] “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.
. 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.,
. The Court also attempts to justify its use of the whole-text canon by noting that