Were South Dakota pardons issued by the Governor between 1995 and 2002 automatically sealed from public view, or could the Secretary of State release them under the open records law?

Plain-English summary

In February 2003, Secretary of State Chris Nelson asked AG Larry Long a difficult records question. The Secretary of State held Orders Granting Pardon for everyone the Governor had pardoned between 1995 and 2002. Someone had asked for the names. Every one of those orders carried language saying it was sealed under SDCL 24-14-11. But the Secretary suspected, correctly, that not all of those pardons had gone through the formal process the sealing statute referenced. Some had been issued by the Governor directly under his constitutional clemency power, with no Board of Pardons and Paroles involvement, no notice to prosecutor or sheriff, and no public hearing. Did the sealing language on those orders carry the same legal weight?

AG Long said no. The sealing statute, SDCL 24-14-11, sealed pardons "granted under the provisions of this chapter," meaning SDCL chapter 24-14. The phrase had a specific referent: pardons that went through the Board of Pardons and Paroles process (notice, public hearing, recommendation to the Governor). The Governor's separate constitutional clemency power under Article IV, Section 3 of the South Dakota Constitution operated outside that chapter, and the chapter 24-14 sealing rule did not reach it. A Governor could not, by inserting language in a constitutional-pardon order, retroactively pull the order into the chapter 24-14 sealing regime.

For the Secretary of State, the practical problem was that the orders looked identical on their face. The opinion solved this by saying the Board of Pardons and Paroles could tell the Secretary which applicants had used the chapter 24-14 process. That disclosure did not violate SDCL 24-14-11, because the Secretary already physically held the orders. With that list in hand, the Secretary could segregate the truly sealed pardons (chapter 24-14) from the public ones (direct constitutional pardons) and release only what was properly public.

The opinion noted that pre-1972 South Dakota law had required all pardons to be filed with the Secretary of State as "records open to public inspection," and the 1972 constitutional amendment expanding the Governor's clemency power did not create an inherent sealing right. The AG cited a 1977 Vermont decision, Doe v. Salmon, which had reached the same conclusion under a similar state constitutional structure.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota has amended portions of SDCL ch. 24-14 and the administrative rules in ARSD 17:60:05 since 2003, including changes to exceptional pardon eligibility and notice procedures, so the specific procedural references in the 2003 opinion may not match current text.

What the opinion meant at the time

For the Secretary of State's office, the opinion gave a workable process. The office did not have to refuse the records request wholesale or release everything; it had a sorting rule keyed to the actual procedure used, plus a source (the Board) that could tell which procedure applied to each order.

For the Board of Pardons and Paroles, the opinion meant the Board could share procedural metadata about who used the chapter 24-14 process without breaching its confidentiality obligations. The Board did not have to disclose application contents, just whether a given individual had gone through the formal process.

For pardon applicants in the 1995 to 2002 window, the opinion meant that anyone whose pardon had been issued under the Governor's direct constitutional power, without the Board, had a record that was open to public inspection notwithstanding the sealing language on the face of the order. That was a meaningful exposure for people who had been told their record was sealed.

For prosecutors and law enforcement using pardon information for sentencing or habitual-offender purposes, the opinion did not change the rule (already in SDCL 24-14-11) that pardoned offenses were still considered prior convictions for habitual-offender or subsequent-sentencing purposes. It only addressed the public-disclosure side.

For practitioners advising clients seeking a pardon going forward, the opinion was a strong nudge toward the formal chapter 24-14 route if confidentiality mattered to the client. A constitutional pardon was faster but did not carry the sealing protection.

Common questions

Q: What were the four ways to get a South Dakota pardon at the time of this opinion?
A: First, an Executive Order Pardon under SDCL ch. 24-14 and Executive Order 87-15. Second, an Exceptional Pardon under SDCL 24-14-8 (available 5 years after release from the penitentiary, single non-life felony). Third, petitioning the Governor with referral to the Board under SDCL 24-14-5. Fourth, a constitutional pardon under Article IV, Section 3, with no Board involvement at all. The first three triggered sealing under SDCL 24-14-11; the fourth did not.

Q: Did the constitutional pardon route include any public notice?
A: No. The opinion noted that a constitutional pardon "does not involve the Board or SDCL ch. 24-14 in any way, and does not contemplate any public notice or hearing. It is simply an exercise by the Governor of his constitutional power to pardon." That made the constitutional pardon route fast but also legally distinct from the chapter 24-14 route.

Q: Did the AG's reading actually create a public-record exposure even for people who relied on a Governor's sealing order?
A: Yes. The opinion said directly: "a governor's order sealing a pardon has no force and effect" when chapter 24-14 was not utilized. People who had received a constitutional pardon and had been led to believe their record was sealed had records that were, in fact, open to public inspection.

Q: What was the historical baseline before 1972?
A: Pre-1972 South Dakota law (the prior version of Article IV, Section 5, and SDCL ch. 23-59) limited the Governor's pardon power and required a Board recommendation, and SDCL 23-59-3 (first enacted in 1890, since repealed) directed copies of all orders granting pardon to be filed with the Secretary of State as "records open to public inspection." The 1972 constitutional amendment expanded the Governor's clemency power but did not, in the AG's view, also create an inherent sealing right.

Q: What was the Vermont case doing in a South Dakota opinion?
A: Doe v. Salmon, 378 A.2d 512 (Vt. 1977), considered a Vermont constitutional structure similar to South Dakota's and concluded that there was no constitutional or common-law basis for treating pardon records as outside the public records laws. The AG cited it as persuasive support for the same conclusion in South Dakota.

Background and statutory framework

The pardon power in South Dakota lives in two places: Article IV, Section 3 of the South Dakota Constitution (the Governor's direct power to grant pardons, commutations, and reprieves, and to suspend and remit fines and forfeitures), and SDCL chapter 24-14 (the statutory delegation process administered by the Board of Pardons and Paroles).

Article IV, Section 3 was adopted in 1972. It is self-executing: the Governor has the constitutional power to pardon without statutory authorization. Before 1972, the prior constitutional text and SDCL ch. 23-59 imposed legislative procedures on the pardon process and required a Board recommendation; under SDCL 23-59-3, copies of pardon orders were filed with the Secretary of State as public records.

SDCL 24-14-1, enacted in 1978, lets the Governor delegate authority to the Board of Pardons and Paroles to hear pardon applications and make recommendations. Governor George Mickelson exercised that delegation in Executive Order 87-15 (May 5, 1987), following an earlier delegation in Executive Order 82-4 (April 12, 1982).

The chapter 24-14 process is procedural and public-facing: SDCL 24-14-3 requires notice to the prosecutor, presiding judge, and county sheriff; ARSD 17:60:05:03 and :06 add procedural detail; SDCL 24-14-4 requires newspaper publication and courthouse posting of the hearing notice; SDCL 24-14-6 requires the hearing itself to be open to the public, with objectors permitted to appear; SDCL 24-14-9 carves out an exception for exceptional pardons under SDCL 24-14-8 (no newspaper publication for those).

SDCL 24-14-11 then sealed records of pardons "granted under the provisions of this chapter," restoring the pardoned person to pre-arrest status in the eyes of the law and shielding them from perjury liability for failing to disclose the underlying arrest, indictment, trial, or pardon when later questioned. The statute carved out one exception: for sentencing on subsequent offenses or habitual-offender determinations under SDCL ch. 22-7, the pardoned offense still counted as a prior conviction.

The opinion's central move was textual. The phrase "under the provisions of this chapter" in SDCL 24-14-11 had a definite referent: chapter 24-14. The Governor's direct constitutional pardon power was not "under the provisions of this chapter." It was under the Constitution. The sealing rule therefore did not reach it.

To back up the textual reading, the AG invoked two canons. From Maynard v. Heeren, 563 N.W.2d 830 (1997), the rule that effect should be given to every part and every word of a statute. From Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17, the rule that when statutory language is clear and unambiguous, no construction is required and the court declares the meaning as written. Both pointed to the same conclusion: the statute's text controlled, and the statute's text limited sealing to the chapter 24-14 route.

The AG also addressed the practical disclosure problem. SDCL 24-14-11 protected the confidentiality of pardons granted under chapter 24-14 once granted. But the Secretary of State already physically held all the orders. The Board telling the Secretary which orders went through the chapter 24-14 process did not disclose anything the Secretary did not already know on its face plus a categorization. The opinion treated that intra-government coordination as compatible with SDCL 24-14-11.

Citations and references

Constitutional provisions:
- S.D. Const. art. IV § 3 (Governor's clemency power, 1972)

Statutes:
- SDCL § 1-8-1 (Secretary of State filing duties)
- SDCL § 1-27-1 (public records, open inspection)
- SDCL § 1-27-3 (confidentiality carve-out)
- SDCL ch. 24-14 (pardon process)
- SDCL §§ 24-14-1, -3, -4, -5, -6, -8, -9, -11
- SDCL ch. 22-7 (habitual offender)
- SDCL ch. 23-59 (repealed pre-1972 pardon procedure)
- ARSD 17:60:05 (administrative rules on pardons)
- Executive Order 87-15 (May 5, 1987)
- Executive Order 82-4 (April 12, 1982)

Cases:
- Maynard v. Heeren, 563 N.W.2d 830 (S.D. 1997)
- Moss v. Guttormson, 1996 S.D. 76, 551 N.W.2d 14
- Doe v. Salmon, 378 A.2d 512 (Vt. 1977)
- In re Opinion of the Judges, 83 S.D. 477, 161 N.W.2d 707 (1968)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2003-01.pdf

Original opinion text

February 14, 2003

The Honorable Chris Nelson
Secretary of State
500 East Capitol Avenue, Ste. 204
Pierre, SD 57501-5070

OFFICIAL OPINION 03-01
Pardons

Dear Secretary of State Nelson:

You have requested an official Attorney General's opinion regarding the following factual situation:

FACTS:

The Secretary of State is required under SDCL 1-8-1(1) and (2) to affix the great seal to and file pardons issued by the governor. I have received a request to disclose the names of individuals who are named on Orders Granting Pardon that were filed in the Secretary of State's Office from 1995 through 2002. All of the pardons issued during this period of time include language similar to the following: "It is further ordered that all official records relating to this personal offense, along with all recordation relating to the defendant's arrest, indictment or information, trial, finding of guilt and receipt of a pardon are hereby sealed pursuant to § 24-14-11 of the South Dakota Codified Laws."

Based upon this factual situation, you asked the following questions:

QUESTION NO. 1:
Are all Orders Granting Pardon required to be sealed?

QUESTION NO. 2:
If the answer to Question No. 1 is "no" and some Orders Granting Pardon are subject to disclosure, how do I determine which pardons may be disclosed?

A brief discussion of South Dakota open records laws and pardons is necessary to give context to the answers to your questions.

OPEN RECORDS LAWS

As you have correctly noted, the Secretary of State is specifically required to keep and file pardons pursuant to SDCL 1-8-1(1) and (2), which state as follows:

It is the duty of the secretary of state:
(1) To file official acts of the Governor to which attestation over his signature and the great seal is required;
(2) To affix the great seal and his attestation to all commissions, pardons, and other public instruments.

This statute gives direction on whether the records are public. SDCL 1-8-1(2) states that the Secretary of State is to affix the seal and attest to all "commissions, pardons and other public instruments to which the signature of the Governor is required" and then enumerates certain exceptions (none of which is applicable here). Use of the term "other public instruments" immediately following the reference to pardons is meaningful. It is apparent that the term is designed to include a group of similar documents, all of which are public. In the absence of such interpretation, the term "other" would be surplusage. Indeed, effect should be given to every part and every word of the statute being interpreted. Maynard v. Heeren, 563 N.W.2d 830 (1997). Accordingly, the general law applying to the Secretary of State provides that pardons are public.

The foregoing general rule is consistent with the policy set forth in SDCL 1-27-1. In that statute, the legislature declared its public record policy. The statute provides, in pertinent part:

If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours.

An exception to this general rule is found in SDCL 1-27-3, which reads:

Section 1-27-1 shall not apply to such records as are specifically enjoined to be held confidential or secret by the laws requiring them to be so kept.

Thus, because the Secretary of State is legally required to file pardons pursuant to SDCL 1-8-1(1) and (2), such pardons are open to public inspection unless the legislature has declared otherwise.

PARDONS

The power to pardon an individual for a criminal offense is granted to the Governor by the South Dakota Constitution at Article IV, Section 3, which states:

The Governor may, except as to convictions on impeachment, grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures.

The above quoted provision was adopted in 1972. Therefore, since 1972, every South Dakota Governor has enjoyed the self-executing constitutional power to "grant pardons, commutations, and reprieves, . . ."

In 1978, the legislature enacted SDCL 24-14-1, which states:

The Governor may, by executive order, delegate to the board of pardons and paroles [hereinafter "Board"] the authority to hear applications for pardon, commutation, reprieve, or remission of fines and forfeitures, and to make its recommendations to him.

In 1987, Governor George S. Mickelson entered an Executive Order pursuant to SDCL 24-14-1. Since then the Board has periodically been utilized to process applications for pardons.

There are four avenues for seeking a pardon:

First: an applicant can petition the Board for an Executive Order Pardon under SDCL ch. 24-14 and Executive Order 87-15.

Second: an applicant can petition the Board for an Exceptional Pardon under SDCL 24-14-8 if the applicant has been released from the penitentiary for at least 5 years and has had only one felony for an offense punishable by imprisonment less than life.

Third: an applicant may petition the Governor who may refer the application to the Board for consideration and a recommendation pursuant to SDCL 24-14-5.

Fourth: an applicant may petition the Governor who may act on the application pursuant to his constitutional power without involving the Board or SDCL ch. 24-14 in any way (hereafter "constitutional pardon").

The first, second and third avenues all require compliance with the process set forth in SDCL ch. 24-14 and ARSD 17:60:05. This process includes: notice to the prosecuting attorney, judge who presided at the trial and county sheriff (SDCL 24-14-3 and ARSD 17:60:05:03 and 06); a hearing which is open to the public and allows objectors to appear in person or through writing (SDCL 24-14-6); and, in cases other than exceptional pardons, publication of the notice of hearing in newspapers of general circulation in the county where the offense was committed and posting of the notice in a conspicuous place on the door of the county's courthouse. SDCL 24-14-4. Publication and posting the notice of hearing is not required for exceptional pardons. SDCL 24-14-9. After the hearing, the Board makes a recommendation to the Governor, all pursuant to SDCL ch. 24-14.

However, the fourth avenue (constitutional pardon) does not involve the Board or SDCL ch. 24-14 in any way, and does not contemplate any public notice or hearing. It is simply an exercise by the Governor of his constitutional power to pardon.

IN RE QUESTION 1:

You ask whether all pardons filed in your office are required to be sealed. The answer to your question is "no," because of the limiting language of SDCL 24-14-11, which states:

Any person who has been granted a pardon under the provisions of this chapter shall be released from all disabilities consequent on such person's conviction. Upon the granting of a pardon under the provisions of this chapter, the Governor shall order that all official records relating to the pardoned person's arrest, indictment or information, trial, finding of guilt and receipt of a pardon shall be sealed. The effect of such order is to restore such person, in the contemplation of the law, to the status the person occupied before arrest, indictment or information. No person as to whom such order has been entered may be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of such person's failure to recite or acknowledge such arrest, indictment, information or trial in response to any inquiry made of such person for any purpose.

For the sole purpose of consideration of the sentence of a defendant for subsequent offenses or the determination of whether the defendant is a habitual offender under chapter 22-7, the pardoned offense shall be considered a prior conviction.

(Emphasis added.)

The phrase "under the provisions of this chapter" refers to SDCL ch. 24-14 and mandates the sealing of the records of a pardon when the pardon was issued "under the provisions of" SDCL 24-14 ("this chapter"). The statute makes no reference to pardons issued outside of SDCL ch. 24-14.

The question you raise involves statutory construction. When answering questions of this nature, this Office utilizes the rules of construction adopted by our Supreme Court:

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction and the Court's only function is to declare the meaning of the statute as clearly expressed.

Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted).

Based on the clear and unambiguous language of SDCL 24-14-11, it is my opinion that only those pardons that are granted under the provisions of SDCL ch. 24-14 can be sealed. Any pardons granted without utilizing the provisions of SDCL ch. 24-14 may not be sealed, notwithstanding any language to the contrary that is in an order granting pardon. Thus, SDCL 24-14-11 is an exception to the public records law, but only for those pardons granted after compliance with the Board process in ch. 24-14.

I have reviewed other statutory exceptions to the public records provisions and find none of them applicable. Further, given pre-1983 South Dakota law that all pardons were open to public inspection, I conclude that the right of a governor to issue pardons does not include the inherent power to seal such record. This is consistent with the Vermont Supreme Court's decision in Doe v. Salmon, 378 A.2d 512 (Vt. 1977) wherein the court held, despite a constitutional provision similar to South Dakota's, that there was no constitutional or common law authority supporting the premise that records of pardons are exceptions to the public record laws. Therefore, under circumstances where ch. 24-14 is not utilized, a governor's order sealing a pardon has no force and effect.

IN RE QUESTION 2:

I understand that, with respect to the pardons filed with your office from 1995 through 2002, some were granted utilizing SDCL ch. 24-14 and some were granted under a governor's inherent constitutional authority. There is nothing on the face of the documents that allows you to discern which pardons were granted under the SDCL ch. 24-14 process because all of these pardons contain language directing that they be sealed pursuant to SDCL 24-14-11. Further, I understand you do not have any other information in your possession allowing you to determine which pardons utilized the statutory procedure. The ultimate issue, then, is whether you have the authority and ability to determine which pardons are open to public inspection.

While the filing of pardons is a ministerial duty of your office, you also have an inherent duty to comply with the public records laws in SDCL ch. 1-27. Therefore, if you can obtain information which allows you to determine which pardons can be made public, you should do so. I recognize the information necessary for you to make this determination is not in your office.

In my opinion, because the Secretary of State already possesses all pardons, it is not a violation of SDCL 24-14-11 for the Board to disclose to the Secretary of State the names of those applicants who utilized the ch. 24-14 procedure. Therefore, the Board may provide you with this information, which you may use to determine which pardons shall be open to the public.

In conclusion, those pardons granted as a result of an application processed under SDCL ch. 24-14 are properly sealed. The others are available for public inspection.

Very truly yours,

LARRY LONG
ATTORNEY GENERAL

[1] Prior to 1972, a governor's power to pardon was limited by the prior version of Article IV, Section 5 of the South Dakota Constitution and SDCL ch. 23-59. Under those provisions of law, the legislature was specifically authorized to regulate the process of obtaining a pardon, and the governor was required to report to the legislature each session regarding the pardons granted. Further, the governor could only grant pardons upon recommendation of the Board of Pardons and Paroles. See In Re Opinion of the Judges, 83 S.D. 477, 161 N.W.2d 707 (1968). Under SDCL 23-59-3, which was first enacted in 1890 (now repealed), copies of all orders granting pardon were to be filed with the Secretary of State and kept as "records open to public inspection."

[2] See Ex. Order 87-15 (May 5, 1987). An executive order was also entered in 1982 which delegated similar authority to the Board regarding pardons. See Ex. Order 82-4 (April 12, 1982).