PIERRE, S.D. — The question of whether a circuit judge can keep private records recovered by police while investigating a Sioux Falls billionaire came before the highest court in South Dakota on Tuesday, Aug. 24, marking the first public appearance of the heavyweight legal fight.
Two media organizations, the Sioux Falls Argus Leader and ProPublica, went to the state supreme court seeking to unseal the contents turned up by a search warrant linked to a months-long, multi-state investigation into a person court documents only refer to as an "Implicated Individual."
Later on Tuesday, the Associated Press confirmed the interested subject is billionaire philanthropist and namesake of the Sanford Health system, T. Denny Sanford.
According to court records, the "Implicated Individual" is being represented by former South Dakota Attorney General Marty Jackley.
A year ago , a federal investigation of Sanford, whose likeness graces statutes outside hospitals in Sioux Falls, became public, as officials with the U.S. Department of Justice focused on an electronic device associated with Sanford that had been linked to child pornography.
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The former Premier Bank CEO has not been charged with a crime.
On Tuesday before the court, attorneys for the media outlets sought to "certain records related to search warrants," said a report from the Argus Leader , who is barred from commenting on the legal fight.
The legal team representing the Argus and ProPublica, an investigative nonprofit, won a case last year at a lower court level, said the Argus Leader. The campaign for the search warrant records was only made public on Tuesday.
Both Jeff Beck and Jon Arneson, Sioux Falls attorneys representing the media companies pursuing the records, told the South Dakota Supreme Court the state's sunshine laws allow for those records to be open.
"We have a statute that's pretty clear. And it says, this stuff is going to be open," said Jon Arneson, attorney for the Argus Leader. "We don't care if it's implicated individual A, John Doe, Jane Doe, Freddie Frank."
The legal team later said they were not allowed to confirm the identity of the "Implicated Individual." A court administrator also told FNS the files related to this proceeding are sealed. The case title refers only to an "Implicated Individual."
Jackley, during the 40-minute argument, referred to his client only as "an uncharged individual." He said the fight for his client's privacy rests not necessarily on state law, but on past precedent in similar cases.
"You have before you an uncharged individual that's never been arrested, there's never been a complaint ... or an indictment," Jackley told the five justices.
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When Justice Mark Salter pushed Jackley on his interpretation of whether an accused individual could have his record expunged by a court, Jackley reminded the court that his client hadn't been arrested.
"Under this interpretation," Jackley said, "You'd be better off if he'd been arrested."
Beck, attorney for ProPublica, said the case should be rooted entirely in statute, arguing the court allowing one defendant, even a powerful one, to seal records could set a dangerous precedent for future individuals to hide records that are presumably public.
"If we go down that path, essentially the floodgates are going to open," said Beck.
At the oral argument's outset, Chief Justice Steven Jensen told the attorneys to "refrain from identifying the names of any implicated individual in the search warrants, affidavits, or the search warrants themselves."
A decision in the case is not expected immediately.
Following a cooling off period with Sanford Health and Sanford following revelations last fall of the child pornography investigation, relations between the philanthropist and the company bearing his name had been rekindled after a $300 million gift this spring.
