RAPID CITY JOURNAL, Applicant, v. THE HONORABLE CHAD R. CALLAHAN, South Dakota Fourth Judicial Circuit Magistrate Judge, Respondent.
#29811, #29812-PJD
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
June 22, 2022
2022 S.D. 38
ORIGINAL PROCEEDING
JON E. ARNESON Sioux Falls, South Dakota Attorney for applicant.
JASON R. RAVNSBORG Attorney General PAUL S. SWEDLUND Solicitor General Pierre, South Dakota Attorneys for respondent.
CONSIDERED ON BRIEFS JANUARY 10, 2022
OPINION FILED 06/22/22
[¶1.] This matter concerns the Rapid City Journal‘s (Journal) applications for alternative writs of prohibition and mandamus and corresponding applications for permission to commence original prohibition and mandamus proceedings against the Honorable Chad Callahan, magistrate judge. The Journal alleges that its right to access Gary Cammack‘s criminal court file was violated when Judge Callahan entered an order sealing Cammack‘s court file prior to the expiration of the condition that he obey all laws for six months. The Journal further asserts that Judge Callahan could not enter an order that had the effect of suspending imposition of sentence without a probation condition. After reviewing the Journal‘s applications, we directed the Journal to address on what basis it has standing to apply for its requested relief and directed Judge Callahan to detail the procedural history of the matter and identify the authority upon which the court sealed Cammack‘s court file.
Factual and Procedural Background
[¶3.] In response to this Court‘s directive, Judge Callahan has provided the following procedural history. On January 18, 2020, Cammack was arrested for and charged with speeding and first offense driving while under the influence in Meade County. Because of a conflict of interest, the Pennington County State‘s Attorney‘s Office prosecuted the action. Cammack initially pled not guilty, and thereafter, multiple status hearings were held. Although a jury trial was scheduled, the State and Cammack entered into a plea agreement after a pre-trial conference on June 10, 2021. The agreement provided that Cammack would plead guilty to careless driving and speeding, pay fines and costs, and not violate any laws for a period of six months. The agreement also contemplated that Cammack would request a suspended imposition of sentence. At a change of plea hearing on June 29, 2021, Judge Callahan accepted Cammack‘s guilty plea and granted a suspended imposition of sentence on the conditions that Cammack pay fines and costs and not violate any laws for six months. All of these proceedings were open to the public, and the court filings were likewise accessible to the public during the several months while these proceedings were occurring.
[¶4.] On October 1, 2021, Cammack‘s attorney sent an email to the Meade County Clerk of Courts noting that Cammack‘s criminal case was still designated as a “pending” case and asking what steps needed to be taken to have the case sealed. Cammack‘s attorney explained in the email that he thought the judge had ordered an immediate seal of the court file when granting the suspended imposition of sentence. The clerk replied that the notes from the court proceeding did not show that Judge Callahan ordered an immediate seal. The clerk further explained that Odyssey (South Dakota‘s electronic filing system) showed the seal date would be December 29, 2021.
[¶5.] Counsel for Cammack then sent an email to the prosecutor asking whether he would object to a modification of the court‘s order suspending the imposition of sentence so that the case could be immediately sealed. The prosecutor did not object, and counsel for Cammack sent an email to Judge Callahan and the prosecutor, and copied the clerk of courts, asking whether the court would be willing to grant an immediate seal. After receiving Cammack‘s request, the clerk advised that no “Judgment” had been filed in the case. Judge Callahan responded that he would grant the request for an immediate seal, assuming the fines and costs had been paid. The prosecutor then indicated he would “follow up on the judgment.”1 Judge Callahan thereafter signed and filed an order on October 4, 2021, sealing the court file. The seal order identified that Cammack had “observed all the conditions imposed by the [c]ourt.” On this same date, presumably to rectify the fact noted by the
[¶6.] In early October 2021, the Journal became aware of Cammack‘s criminal case and secured copies of the documents relating to the case that had been filed in Odyssey before the seal order took effect. The dispositional notes in the Odyssey file showed that the court‘s suspended imposition of sentence contained two conditions: 1) that Cammack pay the fines and costs on the date of his plea and sentencing hearing (June 29, 2021); and 2) that Cammack violate no laws for a period of six months. This information caused the Journal to question why the magistrate court‘s sealing of the court file occurred prior to the expiration of the six month period. On October 15, the Journal sent an email to the prosecutor and Cammack‘s defense counsel requesting information regarding the court‘s authority to prematurely seal the file. Cammack‘s attorney explained that Judge Callahan had amended the order suspending the imposition of sentence to remove the obey all laws provision.2
[¶7.] According to the Journal‘s statement of facts in its verified applications for alternative writs of mandamus or prohibition, the Journal received, upon request, further documentation from Cammack‘s counsel. The Journal received Judge Callahan‘s order sealing the court file entered on October 4, 2021, a copy of the arrest document, and a copy of the emails exchanged among counsel and Judge Callahan that led to the order sealing the court file. However, the Journal asserted in its verified applications that its “questions regarding the existence of [the seal] order” have “gone unanswered” by Judge Callahan and the prosecution.3
[¶8.] On November 1, 2021, the Journal requested, in its application for an alternative writ of prohibition and for permission to commence an original prohibition proceeding against Judge Callahan, that this Court enter a writ of prohibition barring the magistrate court from entering or enforcing the order granting Cammack a suspended imposition of sentence without a probation condition and prohibiting the court from enforcing the corresponding seal order. The Journal similarly requested in its application for an alternative writ of mandamus and permission to commence an original mandamus proceeding that this Court direct the magistrate court to unseal Cammack‘s court file and rescind any order to the contrary and to rescind any order that removes the probation condition.
[¶9.] After reviewing these applications, this Court issued an order on November
- Whether the Journal has standing to request either a writ of prohibition preventing the magistrate court from granting or enforcing an order suspending imposition of sentence that does not contain a term of probation as a condition or a writ of mandamus directing the rescission of any such order.
- Whether the Journal has standing to request either a writ of prohibition preventing the magistrate court from enforcing its order sealing Cammack‘s court file or a writ of mandamus directing that the court rescind such order and unseal the court file.
- Whether the magistrate court had authority to seal Cammack‘s court file prior to the expiration of the timeframe set forth in the governing dispositional order.
Analysis and Decision
[¶10.] “Under Article V, § 5 of the South Dakota Constitution, this [C]ourt has authority to issue, hear and determine any original or remedial writs.” Dacy v. Gors, 471 N.W.2d 576, 578 (S.D. 1991). “[A]n applicant for a writ of prohibition must show that he or she has no ‘plain, speedy and adequate remedy in the ordinary course of law’ available to them.” Cummings v. Mickelson, 495 N.W.2d 493, 495 (S.D. 1993) (quoting
1. Whether the Journal has standing to request either a writ of prohibition preventing the magistrate court from granting or enforcing an order suspending imposition of sentence that does not contain a term of probation as a condition or a writ of mandamus directing the rescission of any such order.
[¶11.] In its application for an alternative writ and permission to commence an original prohibition action, the Journal asserts that the magistrate court had no authority to grant a suspended imposition of sentence without a probation condition. In its view, “probation is a necessary and essential component of any suspended imposition
[¶12.] A writ of prohibition “arrests the proceedings, administrative or judicial, of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, or are without or in excess of the powers of authority conferred by law upon such tribunal, corporation, board, or person.”
[¶13.] In fact, the Journal appears to concede that it does not have an interest in the resolution of the underlying criminal matter. It acknowledges that it “does not allege standing to insinuate itself into a criminal case to interfere with the administration of justice, per se.” Rather, in the Journal‘s view, its “standing derives directly from the press and public‘s right to assert and protect lawfully endowed rights of access to public records.” (Emphasis added.)
[¶14.] Whether the Journal has standing to seek a right of access to Cammack‘s court file implicates an entirely different inquiry than whether the Journal has standing to challenge a sentence, or a suspension or modification thereof, that a defendant receives. In regard to a citizen‘s standing under Article III of the United States Constitution to challenge a defendant‘s criminal sentence, federal courts have concluded that no such standing exists because “a non-party lacks a judicially cognizable interest in a criminal defendant‘s sentence[.]” United States v. Stoerr, 695 F.3d 271, 277 (3d Cir. 2012) (cleaned up) (citation omitted); see also Whitmore v. Arkansas, 495 U.S. 149, 156, 110 S. Ct. 1717, 1723, 109 L. Ed. 2d 135 (1990). The Massachusetts Supreme Court has similarly concluded on state law grounds that a crime victim could not challenge the conditions of probation imposed on a defendant because the victim does not have a “judicially cognizable interest in the proceeding and lacks standing to challenge the sentence.” H.T. v. Commonwealth, 989 N.E.2d 424, 425 (Mass. 2013).5 Because the Journal is not a person beneficially interested in Cammack‘s criminal proceeding, it does not have standing to request writs of prohibition or mandamus challenging
2. Whether the Journal has standing to request either a writ of prohibition preventing the magistrate court from enforcing its order sealing Cammack‘s court file or a writ of mandamus directing that the court rescind such order and unseal the court file.
[¶15.] As to the magistrate court‘s order sealing Cammack‘s court file, the Journal claims that it has standing to challenge such order and obtain relief in the form of a writ of prohibition or a writ of mandamus because this Court has previously recognized that the media has a right of access to court proceedings and thus standing to request such writs. Judge Callahan does not appear to dispute that the Journal has standing to request writs of prohibition or mandamus related to whether the October 4, 2021 seal order violated the Journal‘s right of access.
[¶16.] In Sioux Falls Argus Leader v. Miller, we examined whether the Argus Leader, “a nonparty to the underlying lawsuit, has standing to challenge the gag order[,]” see 2000 S.D. 63, ¶ 6, 610 N.W.2d 76, 80, that barred “certain conduct [the court] believed would inhibit both the State‘s and the defendants’ rights to fair and impartial proceedings that may eventuate in a trial[,]” see id. ¶ 3. We noted that “[t]he United States Supreme Court has previously determined that the First Amendment protects the right to receive information and ideas.” Id. ¶ 7. We also recognized that “[o]ther courts have held that news agencies have standing to challenge court orders in an effort to obtain information or access to judicial proceedings, though the agencies are neither parties to the litigation nor directly restrained by those orders.” Id. ¶ 8. In light of this authority, the Court concluded
that the Argus Leader had standing to challenge the validity of the gag order “because the order, though not directed at [the Argus Leader], restricts some of the sources to which it may turn or has turned for information about the underlying criminal action” and that if a violation of the Argus Leader‘s right to receive information and ideas exists, “the injury falls within the zone of interests protected by the First Amendment.” Id.
[¶17.] So too here, the Journal has a right to obtain and access criminal court files, and if Judge Callahan sealed Cammack‘s court file when a condition of his suspended sentence had not yet been satisfied, the court‘s order necessarily violated the Journal‘s right to access. Therefore, the Journal has standing to challenge the validity of Judge Callahan‘s October 4, 2021 seal order. The Journal has also made the necessary showing to seek a writ from this Court because the Journal‘s request to the magistrate court for access to Cammack‘s court file was denied, and the Journal has no other plain, speedy, or adequate remedy in the ordinary course of law in the event the magistrate court‘s seal order violated the Journal‘s right to access. See Miller, 2000 S.D. 63, ¶ 5, 610 N.W.2d at 80.
[¶18.] Judge Callahan contends that he had the authority to enter the order sealing Cammack‘s court file on October 4, 2021, because Cammack was not on probation on that date, or on any date prior. He further asserts that the condition that Cammack obey all laws for six months is not probation, but rather a “condition of sentence.” In response, the Journal claims there is no distinction between a “condition of sentence” and “probation” as Judge Callahan uses the terms because regardless of whether Judge Callahan placed Cammack on formal supervised probation or imposed a condition for the suspended imposition of sentence,
[¶19.] The question whether Judge Callahan had the authority to enter the October 4, 2021 seal order is resolved by the statutes governing the ability of a criminal defendant to obtain a suspended imposition of sentence.
[¶20.] Here, Judge Callahan suspended the imposition of Cammack‘s sentence on the condition that he pay all fines and costs and obey all laws for six months. Thus, contrary to Judge Callahan‘s view, the court did in fact impose a suspended imposition of sentence that included a probationary period wherein certain conditions must be met. See
[¶21.] Importantly, however, even though Judge Callahan originally imposed a condition that Cammack obey all laws for six months, he retained the authority under
the order sealing Cammack‘s court file, he also entered a written order memorializing his suspension of the imposition of Cammack‘s sentence, effective June 29, 2021, which included the condition that Cammack obey all laws for six months. Such period would not expire until December 29, 2021. Thus, the court‘s finding in its October 4 seal order that Cammack had observed all the conditions imposed by the court was erroneous because on that date, Cammack could not have satisfied the conditions set forth in the corresponding order suspending the imposition of his sentence.
[¶23.] However, the error did not occur because of an improper exercise of discretion. As Judge Callahan has explained in his response to this Court, it was his intention “to lift” this condition on October 4, 2021, but the October 4 order suspending the imposition of sentence prepared for his signature inadvertently retained the initially imposed condition that Cammack obey all laws for six months. Judge Callahan has further advised that he conferred “with the lawyers” and has now remedied this “clerical error” by issuing an amended order on December 15, 2021, removing the condition that Cammack not violate any laws.
[¶24.] South Dakota‘s rules of criminal procedure allow for such corrections. “Clerical mistakes in judgments, orders or other parts of a record and errors in a record arising from oversight or omission may be corrected by a court at any time and after such notice, if any, as the court orders.”
[¶25.] On habeas, the defendant asserted that the circuit court unlawfully enlarged his sentence. This Court disagreed, concluding that the circuit court corrected an inadvertent omission from its intended sentence. Id. ¶ 10. We noted
[¶26.] After reviewing Judge Callahan‘s submission to this Court and the documented email exchange between counsel and the court appended to the Journal‘s applications, it is apparent that Judge Callahan intended to remove the obey all laws provision on October 4, 2021, but mistakenly signed an order (wrongly titled as a judgment) prepared for his signature that retained the condition that Cammack obey all laws for six months. Thus, Judge Callahan acted within his authority under
[¶27.] However, Judge Callahan‘s authority to correct this error does not resolve the question whether the Journal had a right to access Cammack‘s court file up to the time the amended order was entered. The Journal argues that because the condition of Cammack‘s suspended imposition of sentence requiring him to obey all laws for six months had not been fulfilled on October 4, 2021, Judge Callahan acted in excess of his authority and violated the Journal‘s legally protected right of access to judicial records when he entered an order sealing the court file effective on that date. In response, Judge Callahan asserts that the Journal does not have a right of access to Cammack‘s file because he has now corrected his error by issuing the December 15, 2021 amended order, which was signed nunc pro tunc October 4, 2021.
[¶28.] It is well settled that a “‘[n]unc pro tunc’ judgment is a judgment entered to make the record speak the truth and the function of such entry is to correct the judicial records insofar as they fail to record a judgment by the court[.]” Andersen v. Andersen, 2019 S.D. 7, ¶ 11, 922 N.W.2d 801, 803 (quoting In re B.A.R., 344 N.W.2d 90, 94 (S.D. 1984) (Henderson, J., concurring in part and dissenting in part)). “‘Nunc pro tunc’ means ‘now for then’ and when applied to entry of a legal order or judgment, it normally refers, not to a new or de novo decision, but to the judicial act previously taken, concerning which the record is absent or defective, and the later record-making act constitutes but later evidence of the earlier effectual act.” Id.
[¶29.] As Chief Justice Jensen explains in his dissent on this issue, a nunc pro tunc designation has been used by other courts in orders correcting sentencing errors. See infra ¶ 42 (citing cases). However, neither the cases cited by Chief Justice Jensen nor this Court‘s past decisions address the more pertinent question at issue here—whether an amended order should be given nunc pro tunc effect when it prejudices a third party‘s right.8 A review of cases from other courts reveals that there are exceptions to the general premise that a nunc pro tunc order is deemed effective back to the date of the original order in
[¶30.] For example, the Supreme Court of Appeals of West Virginia declined to give retroactive effect to an amended order entered nunc pro tunc because doing so would have cut off the defendant‘s right to appeal. Dement v. Pszczolkowski, 859 S.E.2d 732, 741 n.12 (W. Va. 2021); see also Baker v. Gaskins, 24 S.E.2d 277, 278 (W. Va. 1943) (refusing “to give a retrospective effect to this judgment order which
would result in cutting off the plaintiff‘s time for applying for a writ of error“). The Colorado Court of Appeals also declined to give operational effect to a nunc pro tunc judgment as against an innocent entity who had acquired property rights after the entry of the original judgment and before the amended judgment. Goodman Assoc., LLC v. Winter Quarters, LLC, 292 P.3d 1060, 1064–65 (Colo. App. 2012).
[¶31.] While both Dement and Goodman are distinguishable factually and procedurally from the circumstances here, multiple secondary sources likewise support that a judgment or order entered nunc pro tunc should not be applied as though it was entered on the date of the original judgment or order when the rights of third parties are affected. As one secondary source explained, “[e]xcept as to the rights of third persons, a valid judgment entered nunc pro tunc is retrospective and has the same force and effect as though it had been entered at the time when the judgment was originally rendered.” 49 C.J.S. Judgements § 162 (May 2022) (emphasis added); see also 56 Am. Jur. 2d Motions, Rules, and Orders § 62 (providing that “a court‘s inherent power to correct clerical errors through nunc pro tunc treatment may not be wielded when third parties have substantive rights in play that may be altered by recording a fact as of a prior date, when it did not exist then” (emphasis added)).
[¶32.] Here, it is undisputed that in October 2021 the Journal had the right to access Cammack‘s court file because, at that time, Cammack still had an unsatisfied condition of his suspended sentence as reflected in the governing order signed and filed by the court. See Miller, 2000 S.D. 63, ¶ 5, 610 N.W.2d at 80. Moreover, when Judge Callahan became aware of the error during the course of the current writ proceedings and issued his amended order, nunc pro tunc October 4, 2021, the Journal‘s writ applications—seeking to challenge the very authority of the court to seal the record on this date—were still pending. As such, although Judge Callahan clearly acted within his discretion in issuing an amended order on December 15, 2021, to correct his prior oversight, we decline to give the order nunc pro tunc effect. Under the circumstances here, to do so would impact a third party‘s substantial right, i.e., the Journal‘s right to access Cammack‘s court file when it made such a request in October 2021. We therefore conclude that the Journal is entitled to access the court file that existed up to the date of Judge Callahan‘s amended order suspending the imposition of Cammack‘s sentence that has now made the corresponding seal order lawful under
[¶33.] Although we have determined that the Journal is entitled to access these additional court records, there is nothing in the record to support the Journal‘s suggestion that some form of “government secrecy” was at play here. Cammack‘s court file was accessible to the public from the time it was opened in January 2020 until October 4, 2021. Each hearing during this timeframe was open to the public, including Cammack‘s plea hearing during which
[¶34.] However, for the reasons expressed in this opinion, we grant the Journal‘s application for a writ of mandamus and direct Judge Callahan to provide the Journal access to any documents filed up to and including the court‘s amended order suspending imposition of sentence entered on December 15, 2021. This would include Judge Callahan‘s initial order suspending imposition of sentence entered on October 4 that retained the obey all laws condition and the court‘s December 15, 2021 amended order removing this condition. A writ of mandamus will issue following the expiration of the time for petitioning for rehearing pursuant to
[¶35.] KERN and SALTER, Justices, concur.
[¶36.] JENSEN, Chief Justice, and MYREN, Justice, concur in part and dissent in part.
JENSEN, Chief Justice (concurring in part and dissenting in part).
[¶37.] I agree with the majority opinion‘s resolution of the standing issues, but I dissent from the determination that this Court should exercise its original jurisdiction to grant the Journal‘s petition for a writ of mandamus.
[¶38.] “A writ of mandamus ‘is an extraordinary remedy that will issue only when the duty to act is clear.‘” Thompson v. Lynde, 2018 S.D. 69, ¶ 8, 918 N.W.2d 880, 883 (citation omitted). To prevail on a petition for a writ of mandamus, “the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” Sorrels v. Queen of Peace Hosp., 1998 S.D. 12, ¶ 6, 575 N.W.2d 240, 242.
[¶39.] On this record, the Journal has failed to establish a clear legal right to the extraordinary relief it seeks to compel Judge Callahan to unseal the file. The Journal‘s own submissions demonstrate that the parties agreed in an email exchange on October 1 to modify the six-month probation condition and immediately seal the file. Judge Callahan also indicated his willingness to modify the sentence to permit the file to be immediately sealed.9 Additionally, despite the clerical error to the contrary in the sentencing order, Judge Callahan‘s decision to modify Cammack‘s sentence to remove the six-month condition to obey all laws is confirmed in the accompanying seal order in which Judge Callahan affirmatively found
[¶40.] The Journal‘s theory in its petition, that Judge Callahan improperly sealed the file on October 4, 2021, is based upon the faulty premise that the court did not have the authority to modify the terms and conditions of Cammack‘s sentence to reduce the length of time he was required to obey all laws.
[¶41.] I also disagree with the majority opinion‘s conclusion that the court was without authority to enter a seal order on October 4 and that the nunc pro tunc order was ineffectual to correct the clerical error in the October 4 sentencing order.11
be corrected by a court at any time and after such notice, if any, as the court orders.”
When an order is entered nunc pro tunc to the date of the court‘s oral ruling, this is an exception to the general rule that an order is ineffective until signed and filed. Nunc pro tunc orders are limited to situations where there is an obvious error that needs correction or where it is necessary to conform the order to the court‘s original intent.
56 Am. Jur. 2d Motions, Rules, and Orders § 62 (2022). We have recognized that “[c]ourts have the inherent power to correct their records to reflect accurately the judgment of the court, whether the correction is necessitated by clerical errors or inadvertence.” Coffey v. S.D. Bd. of Pardons & Paroles, 1999 S.D. 164, ¶ 9, 604 N.W.2d 238, 240 (emphasis added) (citation omitted). Thus, a nunc pro tunc order correcting a clerical error does not amend the sentence, but rather corrects the record to reflect the sentence actually imposed. See State v. Sims, 761 N.W.2d 527, 535 (Neb. 2009) (explaining that the “purpose of [an order nunc pro tunc] is to correct the record which has been made,
[¶42.] Other courts have recognized that a nunc pro tunc order correcting a clerical error is effective back to the date of the original order. State v. Smissaert, 694 P.2d 654, 657 (Wash. 1985) (recognizing that a nunc pro tunc order effecting a retroactive judgment to correct omissions in the record relates “the new sentence back to the date of original sentencing” and “is appropriate only to correct ministerial or clerical errors“); State v. Clark, No. 2010CA00006, 2010 WL 3784456, at *2 (Ohio Ct. App. Sept. 27, 2010) (holding under Ohio‘s criminal procedure rule governing clerical mistakes, a nunc pro tunc entry relates back to the date of the sentencing entry it corrects).
[¶43.] This Court should not exercise its original jurisdiction to issue a writ of mandamus based upon an undisputed clerical error in a sentencing order that did not impact the Journal‘s right to access Cammack‘s file. See
[¶44.] MYREN, Justice, joins this writing.