South Dakota voters added Marsy's Law to the state constitution in November 2016. The law gives crime victims a long list of rights, including a right to prevent disclosure of information that could be used to locate or harass them. Now state and local agencies are not sure what to do. Can the police still release motor vehicle crash reports to the public, with names and addresses, the way they always have? Can a daily 'crime log' still show street addresses where crimes happened? Can officers still announce addresses and names over radio traffic? Beadle County's State's Attorney asked these questions; here are the answers.

Plain-English summary

South Dakota voters adopted Marsy's Law in November 2016, adding Article VI, § 29 to the state constitution. The amendment enumerated 19 separate rights for crime victims. One of those rights was the right to prevent disclosure of information or records that could be used to locate or harass the victim or the victim's family, or which could disclose confidential or privileged information about the victim. After the amendment took effect, state and local agencies across South Dakota were unsure what it meant operationally. Could the Department of Public Safety still release the standard motor vehicle crash report (which includes drivers' names, addresses, license numbers, vehicle information)? Could a sheriff's daily activity log still show street addresses where crimes had occurred and the names of victims? Could dispatch radio traffic continue to relay names and addresses to responding officers?

Beadle County State's Attorney Mike Moore put these questions in writing to AG Marty Jackley. The opinion came out on December 5, 2016, about a month after Marsy's Law took effect.

Jackley's answer was that the agencies could continue to release this information in the ordinary course, but with a critical condition: the victim had to invoke the right to prevent disclosure. Until that invocation happened, the right was dormant. After invocation, the right was active and the agency had to honor it.

The reasoning had several layers.

Constitutional interpretation principles. South Dakota's constitutional construction doctrine starts with the language of the amendment and the intent of the framers and the people who adopted it. When the language is plain, courts apply its natural import. When the language is ambiguous, secondary sources are consulted. The Court will read the constitution broadly to accomplish the manifest purpose of an amendment, but will not construe a constitutional provision to arrive at a strained, impractical, or absurd result (Breck v. Janklow (2001), Brendtro v. Nelson (2006)).

The amendment's invocation language. Article VI, § 29 itself contains language suggesting that rights are conditioned on invocation: "The victim, the retained attorney of the victim, a lawful representative of the victim, or the attorney for the government, upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law." The phrase "may assert and seek enforcement" is the language of optional invocation, not automatic prohibition.

Analogy to defendant rights. The amendment provides that victim rights must be protected "no less vigorously than the protections afforded to criminal defendants." Criminal-defendant rights under the Fifth and Sixth Amendments operate on an invocation model. A defendant must unambiguously invoke the right to counsel during custodial interrogation (Edwards v. Arizona (1981), State v. Schuster (1993)). A defendant must unambiguously invoke the right to remain silent (Berghuis v. Thompkins (2010), State v. Waloke (2013)). Compulsory process under the Sixth Amendment requires the defendant to comply with subpoena procedures (SDCL 23A-14-2, -3). The invocation requirement gives officers an objective inquiry to apply. Marsy's Law, by referencing the protections afforded to defendants, brought the same invocation framework into victim rights.

Analogy to non-criminal constitutional rights. The right to vote is guaranteed by the 26th Amendment to the U.S. Constitution but is neither unlimited nor automatic. A person must meet voter qualifications (SDCL 12-3-1), register (SDCL 12-4-1), and actually cast the vote (SDCL 12-18-1, -7.1, and 12-19-1). Victims, like voters, exercise rights to reap the guaranteed benefits.

The absurd-results doctrine. Reading Marsy's Law as an automatic blanket prohibition on disclosure would create several absurd results:

1. Insurance companies could not get crash reports needed to process claims that benefit the victim. The automatic prohibition would harm victims by preventing the routine flow of information that victims and their families rely on.
2. Public safety would be compromised. Law enforcement and other first responders have to communicate freely over radio traffic to coordinate responses. An automatic prohibition would chill that communication and slow response.
3. The amendment itself says it "may not be construed to deny or disparage other rights possessed by victims." Automatic suppression of the victim's name from public records would, in some cases, harm the victim.
4. Automatic blanket nondisclosure would conflict with SDCL 1-27-1 (general presumption of openness) and SDCL 23-5-11 (calls for service revealing date, time, general location, and general subject not confidential).

The conclusion. The amendment was not self-executing for nondisclosure. Until a victim invoked the right to prevent disclosure, agencies could continue to release routine information. After invocation, the agency had to suppress the protected information.

Qualified immunity. The opinion's secondary holding was about agency exposure. Citing Spink County v. Heinhold Hog Market, Inc. (1980), State v. Rumpca (2002), Simpson v. Tobin (1985), and out-of-state authority including Marston's (Ariz. 1982), State v. Spring City (Utah 1953), and State ex rel. Smith v. Leonard (Ark. 1936), the opinion confirmed that officers and agencies that relied in good faith on this Attorney General Opinion were entitled to qualified immunity for their disclosure decisions until a court or the Legislature spoke to the contrary.

The opinion also addressed the definition of "victim" in the amendment. The amendment defined victim broadly: a primary victim is a person who suffers direct or threatened physical, psychological, or financial harm; an ancillary victim is a spouse, parent, grandparent, child, sibling, grandchild, guardian, or anyone with a substantially similar relationship to the primary victim. The amendment makes no distinction between primary and ancillary victims; all enumerated rights apply to every victim.

Currency note

This opinion was issued in 2016. 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. Marsy's Law in South Dakota was significantly amended by the voters in 2018 (Amendment Y), which narrowed automatic protections and refined the invocation framework in part by codifying some of the principles the 2016 AG opinion identified. Anyone implementing Marsy's Law compliance today should consult the current Article VI, § 29 text and any successor AG opinions, not this 2016 opinion alone.

What the opinion meant at the time

For state and local law enforcement agencies in late 2016, the opinion provided immediate operational guidance. Crash reports could continue to flow to insurance companies and the public. Sheriff's daily blotters could continue to list addresses and victim names. Dispatch traffic could continue to function normally. The opinion drew a clear line: the amendment was an invocation-based regime, not an automatic suppression regime.

For State's Attorneys handling the day-to-day intake of charging decisions, the opinion provided a framework for advising local agencies on what to release. The State's Attorney's job, when a victim invoked the right, was to ensure the invocation was processed: information that could locate or harass the victim or family was withheld; other information continued in normal flow.

For victims and their advocates, the opinion clarified that the right to prevent disclosure was real but had to be exercised. The Marsy's Card distributed to victims at the time of victimization served as the notice mechanism. A victim who wanted to suppress address information from public records needed to actively invoke that right, typically through the State's Attorney, through the law enforcement agency, or through retained counsel.

For dispatch supervisors and 911 centers, the opinion preserved operational flexibility. Officers responding to a domestic disturbance could be told the address, the names of parties, and other relevant context over radio traffic, in real time, without first stopping to determine whether some victim had invoked Marsy's rights.

For insurance companies, claim adjusters, and crash-report requesters, the opinion preserved the existing public-records flow. The standard SD-2 motor vehicle crash report continued to be released on request, subject only to specific victim invocations.

For journalists and the public, the opinion preserved transparency. Crime maps, public information releases, and police blotters remained available, with redaction only when a specific victim invoked the right of nondisclosure.

For agencies and officers worried about personal liability, the opinion's qualified-immunity holding was a significant comfort. Good-faith reliance on the AG opinion shielded individual officers from personal liability in a civil rights action arising from a disclosure made under the opinion's framework.

Common questions

Q: Did Marsy's Law automatically suppress information about crime victims?
A: No, per this 2016 opinion. The right of nondisclosure had to be invoked by the victim, the victim's retained attorney, a lawful representative, or the prosecutor at the victim's request. Until invocation, disclosure proceeded as before.

Q: How did a victim invoke the right of nondisclosure?
A: The amendment did not prescribe a specific procedure. In practice, the State's Attorney or the law enforcement agency processed invocations through the Marsy's Card mechanism (which informed victims of their rights) or through direct communications by the victim or counsel.

Q: What if a victim never invoked the right?
A: The information remained subject to normal disclosure rules under SDCL 1-27-1 (presumption of openness), SDCL 23-5-11 (call-for-service information not confidential), and other applicable public records statutes.

Q: Did the opinion protect officers from civil rights lawsuits?
A: Yes, by way of qualified immunity. The opinion built on Spink County v. Heinhold Hog Market, Inc. (1980) and out-of-state precedent confirming that good-faith reliance on an AG opinion entitled officials to qualified immunity until a court or the Legislature changed the law.

Q: Were crash reports still public?
A: Yes, the opinion confirmed that crash reports could be released to the public unless a victim invoked the right of nondisclosure for specific protected information.

Q: Could a sheriff's daily blotter still include street addresses where crimes occurred?
A: Yes, until or unless a specific victim invoked the right of nondisclosure as to that information.

Q: What about dispatch radio traffic?
A: Same answer. Officers could continue to communicate names, addresses, and crime details over radio traffic. Invocation by an individual victim could change the analysis as to that victim's information, but the general operational flow continued.

Q: Who counts as a 'victim' under Marsy's Law?
A: A primary victim (a person who suffers direct or threatened physical, psychological, or financial harm from a crime or attempted crime) plus an ancillary victim (a spouse, parent, grandparent, child, sibling, grandchild, guardian, or anyone with a substantially similar relationship to the primary victim). All rights enumerated in the amendment apply to all victims, primary and ancillary.

Q: Did this opinion preclude later modifications to the law?
A: No. The opinion provided guidance under the 2016 version of Article VI, § 29. The voters amended Marsy's Law in 2018 (Amendment Y) to refine the invocation framework. Future statutory or constitutional changes can further alter the analysis.

Background and statutory framework

Marsy's Law originated as a California ballot measure named for Marsy Nicholas, a UC Santa Barbara student murdered in 1983. The California measure passed in 2008. The model has since been adopted by ballot in several other states, including South Dakota, where it was approved as Amendment S in November 2016.

The 19 enumerated rights in Article VI, § 29 of the South Dakota Constitution included rights to be free from intimidation and harassment, to be reasonably protected from the accused, to prevent disclosure of information that could be used to locate or harass the victim or family, to privacy in interviews and depositions, to refuse a defense interview, to be heard at sentencing, to receive restitution, and to be notified of court proceedings and decisions. The amendment applied to victims of "a crime or delinquent act."

The 2016 opinion addressed the disclosure right specifically. The disclosure right's text gave a victim the ability to "prevent disclosure of information or records that could be used to locate or harass the victim or the victim's family." That language is broad. Under the automatic-prohibition reading, any document containing a victim's name or address would be presumptively suppressed. Under the invocation reading, the document would flow normally unless and until the victim acted to suppress it.

The opinion grounded its invocation reading in three sources: the text of the amendment (which speaks of asserting and seeking enforcement); the amendment's reference to the protections afforded criminal defendants (which operate on an invocation model); and the absurd-results doctrine (which rejected the automatic-prohibition reading as creating workable nightmares for insurance claims, public safety operations, and routine public records).

The opinion was issued one month after the amendment took effect. It was a guidance opinion to state and local agencies trying to figure out how to operate under the new amendment. The legal force of the opinion was, per Spink County and State v. Rumpca, persuasive authority that agencies could rely on in the absence of contrary court rulings.

The 2018 amendment to Marsy's Law (Amendment Y) refined the regime further, in part to address concerns about over-suppression that had arisen in the two years since 2016. The 2016 opinion remained relevant as background for the 2018 amendment debate but was not the final word on Marsy's Law in South Dakota.

The opinion's qualified-immunity holding was significant because it addressed the individual liability concern. Officers and other state actors who relied in good faith on AG opinions historically received protection under the federal qualified-immunity doctrine. The opinion cited federal precedent (Mitchell v. Forsyth) and state and out-of-state precedent confirming that reliance on AG opinions was a valid basis for qualified-immunity protection.

Citations and references

Constitutional and statutory:
- S.D. Const. art. VI, § 29 (Marsy's Law)
- SDCL 1-27-1, 1-27-1.1 (public records presumption of openness)
- SDCL 23-3-27 (law enforcement identifies victims)
- SDCL 23-4-3, 23-5-11 (calls for service)
- SDCL 23A-14-2, -3 (subpoena)
- SDCL 12-3-1, -1.1; 12-4-1; 12-18-1, -7.1; 12-19-1 (voter qualifications and procedures)
- SDCL 1-11-1(5) (AG opinion authority)
- U.S. Const. amends. I, V, VI, XXVI

Cases:
- Davis v. State, 2011 S.D. 51, 804 N.W.2d 618
- Doe v. Nelson, 2004 S.D. 62, 680 N.W.2d 302
- Breck v. Janklow, 2001 S.D. 28, 623 N.W.2d 449
- South Dakota Bd. of Regents v. Meierhenry, 351 N.W.2d 450 (S.D. 1984)
- Brendtro v. Nelson, 2006 S.D. 71, 720 N.W.2d 670
- South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693 (S.D. 1981)
- Spink County v. Heinhold Hog Market, Inc., 299 N.W.2d 811 (S.D. 1980)
- State v. Rumpca, 2002 S.D. 124, 652 N.W.2d 795
- Simpson v. Tobin, 367 N.W.2d 757 (S.D. 1985)
- Mitchell v. Forsyth, 472 U.S. 511 (1985)
- Marston's Inc. v. Roman Catholic Church of Phoenix, 644 P.2d 244 (Ariz. 1982)
- State v. Spring City, 260 P.2d 527 (Utah 1953)
- State ex rel. Smith v. Leonard, 95 S.W.2d 86 (Ark. 1936)
- Edwards v. Arizona, 451 U.S. 477 (1981)
- State v. Schuster, 502 N.W.2d 565 (S.D. 1993)
- Berghuis v. Thompkins, 560 U.S. 370 (2010)
- State v. Waloke, 2013 S.D. 55, 835 N.W.2d 105
- State v. Crawford, 2007 S.D. 20, 729 N.W.2d 346
- Chambers v. Mississippi, 410 U.S. 284 (1973)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2016-02.pdf

Original opinion text

December 5, 2016

Mike Moore
Beadle County State's Attorney
450 3rd St. SW Ste. 108
Huron, SD 57350

OFFICIAL OPINION NO. 16-02

RE: Release of information and records under Article VI, § 29

Dear State's Attorney Moore,

You have requested an official opinion from this Office:

QUESTION:

1. Whether state and local government entities may release motor vehicle crash reports to the public without violating Article VI, § 29?

2. Whether state and local government entities can include street addresses where crimes have occurred and the names of victims in crime report logs or law enforcement radio traffic without violating Article VI, § 29?

ANSWER:

1. State and local government entities may release motor vehicle crash reports to the public without violating Article VI, § 29 under the conditions set forth in this Opinion.

2. State and local government entities may include street addresses where crimes have occurred and the names of victims in crime report logs or law enforcement radio traffic without violating Article VI, § 29 under the conditions set forth in this Opinion.

IN RE QUESTIONS 1 AND 2:

A. Constitutional Interpretation.

"[T]he object of constitutional construction is 'to give effect to the intent of the framers of the organic law and the people adopting it.'" Davis v. State, 2011 S.D. 51, ¶ 77, 804 N.W.2d 618, 643 (quoting Doe v. Nelson, 2004 S.D. 62, ¶ 12, 680 N.W.2d 302, 307) (Gilbertson, C.J., concurring). To accomplish that task, a "constitutional provision must be read giving full effect to all of its parts." Breck v. Janklow, 2001 S.D. 28, ¶ 10, 623 N.W.2d 449, 454 (citing South Dakota Bd. Of Regents v. Meierhenry, 351 N.W.2d 450, 452 (S.D. 1984)). When the constitutional provision's language is "quite plain," then it is "construe[d] according to its natural import." Brendtro v. Nelson, 2006 S.D. 71, ¶ 16, 720 N.W.2d 670, 675. Secondary sources are used if the constitutional provision's language is ambiguous. Id. (citations omitted).

The South Dakota Supreme Court has recognized that "[c]onstitutional amendments are adopted for the purpose of making a change in the existing system and we are 'under the duty to consider the old law, the mischief, and the remedy, and interpret the constitution broadly to accomplish the manifest purpose of the amendment.'" Doe, 2004 S.D. 62, ¶ 15, 680 N.W.2d at 308 (quoting South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 697 (S.D.1981)). Despite that dictate, the Court "will not construe a constitutional provision to arrive at a strained, unpractical[,] or absurd result." Brendtro, 2006 S.D. 71, ¶ 30, 720 N.W.2d at 680 (quoting Breck, 2001 S.D. 28, ¶ 12, 623 N.W.2d at 455).

The Attorney General is broadly empowered to issue official opinions, including to State's Attorneys regarding the duties of their office. SDCL 1-11-1(5). An Attorney General Opinion has the force and effect of law, providing "guidance on legal issues until those issues are ruled upon by a court or the law is changed by the Legislature." See Spink County v. Heinhold Hog Market, Inc., 299 N.W.2d 811, 812 (S.D. 1980); see also State v. Rumpca, 2002 S.D. 124, ¶ 12, 652 N.W.2d 795, 799 (stating "[w]hile attorney general opinions are not binding on the court, they can be considered."); Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D. 1985) (stating "[w]hile we have in the past recognized that Attorney General Opinions should be considered when construing statues, such opinions are not binding on the courts.").

B. Qualified Immunity and Good Faith Reliance on an Attorney General Opinion.

"Qualified immunity is 'an entitlement not to stand trial or face the other burdens of litigation.'" Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This "entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. (emphasis in original).

It is generally accepted that good faith reliance on an Attorney General Opinion entitles a person to qualified immunity. See, e.g., Marston's Inc. v. Roman Catholic Church of Phoenix, 644 P.2d 244, 248 (Ariz. 1982) (stating citizens may rely in good faith on Attorney General Opinions until the courts have spoken on the issue); State v. Spring City, 260 P.2d 527, 531 (Utah 1953) (holding city officials were entitled to rely on the advice of the Attorney General and noting "[i]t would be unfair and unjust to require the city officials to guess at their peril" what a court's opinion would be); State ex rel. Smith v. Leonard, 95 S.W.2d 86, 88-89 (Ark. 1936) (holding reliance on an Attorney General Opinion shields state officials from personal liability). These cases align with the South Dakota Supreme Court's determination that Attorney General Opinions guide agencies on legal issues until the issues are determined by a court or the Legislature changes the law. See Heinhold Hog Market, Inc., 299 N.W.2d at 812.

C. Applicability of Victim Rights Contained in the Constitutional Amendment.

The Amendment defines victim as "a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed." S.D. Const. art. VI, § 29. A victim "also includes any spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, and includes a lawful representative of a victim who is deceased, incompetent, a minor, or physically or mentally incapacitated." Id. Based on a plain reading of this definition, a victim includes both primary and ancillary victims. See id. A primary victim is a person who suffers either direct or threatened physical, psychological, or financial harm as a result of a crime or attempted crime. See id. An ancillary victim is the spouse, parent, grandparent, child, sibling, grandchild, guardian, or any person with a substantially similar relationship to a primary victim. See id. However, the Amendment makes no distinction between the rights afforded to primary and ancillary victims. All rights in the Amendment are applicable to every victim.

Nineteen separate rights are enumerated in the Amendment. The following rights are implicated by the questions presented:

• The right to be free from intimidation, harassment and abuse;
• The right to be reasonably protected from the accused and any person acting on behalf of the accused;
• The right to prevent disclosure of information or records that could be used to locate or harass the victim or the victim's family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records;
• The right to privacy, which includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents;
• The right to be informed of these rights, and to be informed that a victim can seek the advice of an attorney with respect to the victim's rights. This information shall be made available to the general public and provided to each crime victim in what is referred to as a Marsy's Card.

S.D. Const. art. VI, § 29, cl. 2-3; cl. 5-6; cl. 19. These rights, like all rights enumerated in the Amendment, attach "at the time of victimization[.]" S.D. Const. art. VI, § 29.

The Amendment is ambiguous as to the identification, duties, and responsibilities toward victims or potential victims requiring constitutional interpretation. This ambiguity has led to various well-intended interpretations by the Department of Public Safety, State's Attorneys, city and county officials, and other entities. Each entity's interpretation has caused confusion for law enforcement officers and the public alike. Other sources must be consulted to resolve the Amendment's ambiguity. See Brendtro, 2006 S.D. 71, ¶ 16, 720 N.W.2d at 675.

By statute, law enforcement investigates alleged crimes and identifies potential victims of those crimes. SDCL 23-3-27. Once a victim is identified, the Amendment requires that he or she be provided with a Marsy's Card. S.D. Const. art. VI, § 29, cl. 19. A Marsy's Card is attached to this Opinion as an exhibit and incorporated herein by reference.

Rights granted by the Amendment, like all constitutional rights, are subject to reasonable limitations. See State v. Crawford, 2007 S.D. 20, ¶ 16, 729. N.W.2d 346, 349 (stating "no right is limitless, and it 'may bow to accommodate other legitimate interests . . . .'") (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). A review of the rights guaranteed by the United States and South Dakota Constitutions, in the criminal and non-criminal contexts, demonstrates that a reasonable limitation on several of the constitutional rights is the requirement that an individual must invoke or exercise his or her constitutional right in order to seek its protection or reap its benefit.

For instance, in the criminal context, this limitation has been applied to rights guaranteed by the Fifth and Sixth Amendment. The Fifth Amendment grants a defendant the right to counsel during a custodial interrogation; however, that right must be unambiguously invoked to receive its protections. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981); State v. Schuster, 502 N.W.2d 565, 570 (S.D. 1993) (discussing waiver after invocation of right to counsel) (quoting Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85)). The Fifth Amendment also protects a defendant's right to remain silent and a defendant must unambiguously invoke this right. Berghuis v. Thompkins, 560 U.S. 370, 380-82, 130 S.Ct. 2250, 2259-60, 176 L.Ed.2d 1098 (2010); see also State v. Waloke, 2013 S.D. 55, ¶ 24, 835 N.W.2d 105, 112 (observing that questioning by law enforcement would have ceased had defendant unambiguously invoked her right to remain silent) (quoting Berghuis, 560 U.S. at 382, 130 S.Ct. at 2260)).

The United States Supreme Court recognized invocation of a constitutional right is separate from a waiver of the same right. The Court stated, "[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by a showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85.

This distinction is furthered by the Court's analysis in Berghuis. There, the Court first analyzed whether the defendant invoked his right to remain silent. Berghuis, 560 U.S. at 380-82, 130 S.Ct. at 2259-60. The defendant argued his silence was tantamount to an invocation of his right against self-incrimination. Id. at 381, 130 S.Ct. at 2259. The Court found this argument unpersuasive, stating "[t]here is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously." Id. at 381, 130 S.Ct. at 2259-60. "A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity." Id. at 381, 130 S.Ct. at 2260 (citation omitted). After defendant failed to unambiguously invoke his right to remain silent, he made incriminating statements to law enforcement. Id. at 380-81, 130 S.Ct. at 2259. Only then did the Court engage in a waiver analysis. Id. at 382, 130 S.Ct. at 2260.

Similar to the invocation of rights under the Fifth Amendment, the Sixth Amendment guarantees a defendant the right to compulsory process. To reap the benefits of this guarantee, a defendant must invoke such right by complying with the established procedure for obtaining a subpoena. See SDCL 23A-14-2, and -3.

The language of the Amendment requires victims, like criminal defendants, to unambiguously invoke or exercise their constitutional rights to receive the protections. The Amendment recognizes this requirement by stating courts shall ensure "victims' rights and interests are protected in a manner no less vigorous than the protections afforded to criminal defendants[.]" S.D. Const. art. VI, § 29.

In the non-criminal context, every citizen that has attained the legal voting age is guaranteed the right to vote in all federal and state elections. U.S. Const. Amend. XXVI, § 1. This right, while guaranteed, is neither unlimited nor automatic. First, an individual must meet the threshold qualifications to vote. SDCL 12-3-1, and -1.1. Second, an individual must register to vote with the appropriate official. SDCL 12-4-1. Finally, an individual must exercise that guaranteed right by casting a vote according to established procedures. SDCL 12-18-1; SDCL 12-18-7.1; SDCL 12-19-1. Victims, like voters, must exercise their rights to reap the guaranteed benefits.

The Amendment recognizes that the rights guaranteed are conditioned upon an invocation. The Amendment provides:

The victim, the retained attorney of the victim, a lawful representative of the victim, or the attorney for the government, upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right. The court or other authority with jurisdiction shall act promptly on such a request, affording a remedy by due course of law for the violation of any right and ensuring that victims' rights and interests are protected in a manner no less vigorous than the protections afforded to criminal defendants and children accused of delinquency. The reasons for any decision regarding the disposition of a victim's rights shall be clearly stated on the record.

S.D. Const. art. VI, § 29 (emphasis added). Applied to Clause 5, this language requires that a victim must invoke his or her right to prevent disclosure of information or records. S.D. Const. art. VI, § 29, cl.5. Therefore, the government is not automatically prohibited from releasing information or records. This includes motor vehicle crash reports, street addresses, crime report logs, or law enforcement radio traffic. Rather, the government is prohibited from releasing certain information when a victim invokes his or her right to prevent disclosure.

The necessity for a victim to invoke his or her rights under the Amendment is further supported by the rationale identified in Breck v. Janklow, 2001 S.D. 28, ¶ 12, 623 N.W.2d 449, 455. There, the Court recognized that adoption of Article XIII, § 10 of the South Dakota Constitution, which created a state-run cement plant, did not mean the State was required to operate the plant into perpetuity at a loss. Id. The Court determined such an interpretation would be an absurd result. Id. As a result, the Court held Article XIII, § 10 did not prohibit the State from selling the plant. Id. ¶ 13.

Likewise, it is equally absurd to conclude the Amendment automatically prohibits releasing public information. First, an automatic prohibition continuously harms victims by preventing release of information to necessary entities that may be assisting victims, such as insurance providers. Such an interpretation would be counter to the Amendments provisions that it "may not be construed to deny or disparage other rights possessed by victims." S.D. Const. art. VI, § 29. Second, public safety is compromised by such a reading. Indeed, law enforcement and other first responders must be able to communicate freely, without fear of liability, to effectively protect the public. Third, interpreting an automatic prohibition defies other Constitutional protections and the presumption of openness mandated by the Legislature. SDCL 1-27-1, and 1.1; U.S. Const. amend. I. The Legislature specifically determined information "about calls for service revealing the date, time, and general location and general subject matter of the call is not confidential criminal justice information and shall be released to the public" unless otherwise prohibited. SDCL 23-5-11; see also SDCL 23-4-3. Releasing non-confidential information empowers residents, instilling a sense of safety and security in their communities or to take action to protect themselves.

CONCLUSION

In conclusion, based on the principles of constitutional construction and the language of the Amendment, it is my opinion that state and local governments may release in the course of their duties motor vehicle crash reports, street addresses where crimes have occurred, the names of victims in crime report logs, and law enforcement radio traffic without violating Article VI, § 29, as set forth in this opinion.

Sincerely,

Marty J. Jackley
ATTORNEY GENERAL

MJJ/lde