Citizens for Liberty loses open meetings appeal to South Dakota Supreme Court; Open Meetings Commission deemed ultimate arbiter by state’s highest court.

In a decision released earlier this month, it looks like the South Dakota Supreme Court – like much of South Dakota – is not aligned with the thinking of the the Rapid City group, Citizens for Liberty.

By way of explanation, referring back to an article published when the controversy came in front of the Supreme Court in November of 2022…

The opposing parties agree that state law requires a public forum at regularly scheduled school board meetings. But they disagree on how to define the term “regularly scheduled.”

The attorney for the school district said by law, regularly scheduled meetings are set annually on the second Monday in July. Emily Smoragiewicz told justices that other meetings are special meetings, and the district is not required to invite comment at an open forum.

Read that here.

With that as the primary issue, based on subsequent changes in law, the decision issued on November 1st of this year held up that… they weren’t going to touch that, because the legislature rendered it a moot point.

We hold that the issue regarding the interpretation of “regularly scheduled official meeting” as used in SDCL 1-25-1 is moot and, therefore, nonjusticiable. Accordingly, we vacate the circuit court’s decision interpreting the statute.

But the more important issue that was decided, one that has implications for those contesting whether an open meeting was held properly, was an issue not really even discussed in the prior article – WHO has the right to make the final say about what is and is not proper for open meetings. Because the Supreme Court decided that the Open Meetings Commission, not they, are the final arbiter of open meetings complaints, as they addressed the other controversy that came up as part of the court action:

The circuit court also ruled on two other, more peripheral issues. Referring to the “specter” of an open meeting violation, the court stated it did not view “the Declaratory Judgment statutes [as] the appropriate remedy for . . . allegations . . . concerning open meetings.” The court noted the statutory procedure for pursuing an open meeting violation allegation contemplates a role for state’s attorneys and for the South Dakota Open Meetings Commission, but not the court. See SDCL 1-25-6 to -7 (establishing the procedure for determining allegations of open meeting law violations). [¶26.] In addition, the circuit court rejected RCAS’s argument that Citizens could not obtain an interpretation of SDCL 1-25-1 as a request for declaratory relief but, instead, was relegated to an administrative complaint to the Board and, ultimately, an appeal under SDCL 13-46-1. The court noted that RCAS’s argument had “some allure to it,” but the procedure outlined by RCAS “doesn’t preclude the plaintiffs . . . from requesting a Declaratory Judgment as to the meaning of statutes[.]”

…

“An appeal from the action of public officers or boards to the circuit court must be invoked in the manner prescribed by statute.” Middle Creek Sch. Dist. v. Butte Cnty. Bd. of Educ., 83 S.D. 107, 111, 155 N.W.2d 450, 452 (1968) (citation omitted). SDCL chapter 1-25, as presently written, does not provide a route for judicial review of a state’s attorney’s determination that a complaint has no merit.

and..

Because the statute does not prescribe a manner through which a complainant may seek review of the state’s attorney’s decision, the circuit court was without jurisdiction to enter judgment declaring an open meeting violation. Consequently, this Court also lacks jurisdiction to grant Citizens’ requested relief.

and..

We also determine that SDCL chapter 1-25 does not confer jurisdiction upon circuit courts to review the actions of a state’s attorney taken under SDCL 1- 25-6. Thus, we affirm the circuit court’s decision to not review the State’s Attorney’s determination.

Read that as part of the decision below. 

Because the Open Meetings law and complaint process doesn’t provide a mechanism for appeals, the Supreme Court ruled that courts have no basis to take that on. So if a State’s Attorney says “meh,” and does not move a complaint forward, or someone doesn’t like the decision of the Open Meetings Commission, that’s that.

The remaining question would be whether or not legislators decide they want to re-open the issue and inject a mechanism for appeal into current law.

Given that source of this issue is Citizens for Liberty, I’m not sure they will view that as a problem. If it was a group of citizens who have been genuinely wronged, versus those who just want a venue to rant, it might be a different matter. But sometimes the messenger can kill the message.

Read the decision issued November 1 for yourself: 

SD Supreme Court Decision on Citizens for Liberty by Pat Powers on Scribd