After South Dakota voters passed Marsy's Law (Article VI, Section 29) in 2016 establishing constitutional rights for crime victims including a right to prevent disclosure of information that could be used to locate or harass them, could state and local government entities continue to release motor vehicle crash reports to the public, and could they include street addresses where crimes occurred and victim names in crime report logs and law enforcement radio traffic?

Plain-English summary

South Dakota voters passed Marsy's Law in November 2016 as Article VI, Section 29 of the state constitution. The amendment created 19 enumerated rights for crime victims, including a right to be free from intimidation and harassment, a right to be reasonably protected from the accused, a right to prevent disclosure of information that could be used to locate or harass the victim, and a right to privacy. The rights "attach at the time of victimization."

The amendment's broad language created immediate confusion in late 2016. Different agencies were giving different answers. Some treated every victim as automatically protected, blocking release of crash reports, crime locations, and victim names. Others released information as before. Beadle County State's Attorney Mike Moore asked AG Marty Jackley for an official opinion to give law enforcement and other agencies a unified framework.

The AG answered both of Moore's questions in the affirmative:

1. State and local entities may release motor vehicle crash reports to the public without violating Article VI, Section 29 (under the conditions in the opinion).
2. State and local entities may include street addresses where crimes occurred and victim names in crime report logs and law enforcement radio traffic without violating Article VI, Section 29 (under the conditions in the opinion).

The reasoning had several layers:

Constitutional rights are not automatically self-executing. The AG analogized to Fifth Amendment Miranda rights, Sixth Amendment compulsory process, and the right to vote. Each is a constitutional right, but each requires the rights-holder to invoke or exercise it. A criminal defendant who does not invoke his right to remain silent waives the protection by speaking; a citizen who does not register and cast a ballot does not get a vote counted. Marsy's Law rights, the AG concluded, work the same way.

The amendment's text supports invocation-based application. The amendment provides that the victim, the victim's attorney, the victim's lawful representative, or the prosecuting attorney "upon request of the victim, may assert and seek enforcement of the rights." The "upon request" and "may assert" language conditions the protections on a victim's affirmative action.

An automatic-prohibition reading would produce absurd results. Under that reading, victims could not get crash reports for insurance claims, law enforcement could not freely use radio for officer safety, public safety would be compromised by silenced first responders, and journalists would lose access to basic public-safety information. The South Dakota Supreme Court has held that the constitution should not be construed to absurd results (citing Brendtro v. Nelson).

Statutory presumption of openness supports the reading. SDCL 1-27-1 establishes a presumption of openness for public records. SDCL 23-5-11 specifically requires release of date, time, general location, and general subject matter of calls for service. These statutes were not displaced by Marsy's Law and would be hollowed out by an automatic-prohibition reading.

Officials relying on this opinion get qualified immunity. The AG cited Marston's Inc., State v. Spring City, and State ex rel. Smith v. Leonard for the proposition that good faith reliance on an AG opinion supports qualified immunity. Until a court ruled otherwise, agencies could rely on the opinion's framework.

The practical framework. Law enforcement identifies victims under SDCL 23-3-27 and provides each victim with a Marsy's Card explaining their rights. Until the victim invokes a particular right (such as the right to prevent disclosure of locating information), the government continues to operate under existing statutory openness requirements. Once the victim invokes a right, the government must respect it.

Currency note

This opinion was issued in 2016, more than five years before today's date. 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. The South Dakota Legislature has amended SDCL chapter 23A-28C (victim rights) several times since 2016, and the South Dakota Supreme Court has issued multiple decisions interpreting Marsy's Law since the opinion. Anyone applying Marsy's Law today should check current statutes, current case law, and any later AG opinions, not rely on this 2016 framework.

What the opinion meant at the time

For law enforcement agencies, the opinion answered a question that had been generating widely varying practice across South Dakota. Officers could continue to use radio traffic to communicate about crimes in progress, including addresses, without immediately worrying that they were violating victims' constitutional rights. The Marsy's Card distribution process gave victims notice of their rights; the responsibility for invoking those rights lay with the victim, not with the dispatcher.

For city and county attorneys advising public records custodians, the opinion gave a defensible framework: continue to release public records under the existing statutory openness rules until and unless a victim invokes the right to prevent disclosure. Then redact or withhold for that victim.

For journalists, the opinion preserved access to crash reports, crime location information, and law enforcement radio traffic. Without this opinion, the broader interpretation of Marsy's Law would have shut off significant flows of basic public-safety information.

For crime victims, the opinion meant that protection was available but had to be requested. Victims who wanted their address and name kept confidential needed to tell law enforcement or the prosecutor that they were invoking their Marsy's Law right to prevent disclosure. Without that step, the existing public-records regime continued to apply to their case.

For insurance adjusters, the opinion meant they could still obtain crash reports needed to process claims, without being categorically blocked by Marsy's Law concerns.

The opinion was controversial. Marsy's Law advocates argued the AG's invocation-based reading underprotected victims. But the AG's reasoning, that automatic application would harm the very victims it was meant to protect by blocking flow of information they themselves needed, was the framework that won out across South Dakota agencies in late 2016 and into 2017.

Common questions

Q: Is this opinion still good law?
A: Partly. The invocation-based framework has been broadly applied since 2016, but the South Dakota Legislature and Supreme Court have refined specific applications. Anyone applying Marsy's Law today should check the current SDCL chapter 23A-28C, current case law, and any later AG opinions. The opinion is best treated as historical context for how Marsy's Law was initially interpreted, not as a current rulebook.

Q: How does a victim invoke the right to prevent disclosure?
A: The opinion does not specify a formal procedure, but the practical implementation has been (1) a victim can ask law enforcement or the prosecutor that their address or name not be released, (2) the victim can sign the appropriate section of the Marsy's Card, (3) a victim's attorney can file a motion with the court. The mechanism is informal at the outset and formalizes once a case is in court.

Q: What about a deceased victim whose family wants information protected?
A: Marsy's Law defines "victim" to include the spouse, parent, grandparent, child, sibling, grandchild, or guardian of a deceased or incapacitated victim. Those family members can invoke the rights on behalf of the deceased victim. The opinion does not separately analyze how this works in practice for crash report disclosure.

Q: Can government release information that does not identify the victim?
A: Yes. Crash reports and crime logs can be redacted to remove identifying information while keeping the general date, time, location, and nature of the incident. The opinion does not require redaction unless a victim invokes the right, but agencies have discretion to err on the side of caution.

Q: What happens after a victim invokes the right?
A: The agency must respect it going forward. Records already released cannot be unreleased, but future records about that victim can be withheld or redacted. The opinion does not impose a duty to track down and recall previously released records.

Q: Does this opinion give immunity to officials who release information?
A: The opinion cites case law for the proposition that good faith reliance on an AG opinion supports qualified immunity. Officials releasing information consistent with this opinion's framework have a strong argument for qualified immunity, but ultimate immunity determinations would be made by a court on a case-by-case basis.

Background and statutory framework

Marsy's Law had spread across the United States in the 2010s as a model state constitutional amendment, drafted by California millionaire Henry Nicholas in memory of his sister Marsy. South Dakota voters approved it as Amendment S in November 2016 with about 60% support. It took effect immediately.

The amendment's 19 enumerated rights followed the model text closely:

1. The right to fairness, dignity, and respect.
2. The right to be free from intimidation, harassment, and abuse.
3. The right to be reasonably protected from the accused.
4. The right to have safety considered in setting bail.
5. The right to prevent disclosure of locating information.
6. The right to privacy, including the right to refuse interviews and depositions.
7. Plus 13 others related to participation in criminal proceedings.

The amendment also said it should not be construed to deny or disparage other rights of victims, and that victims' rights should be protected "no less vigorously" than those of criminal defendants.

The AG's invocation framework treated the constitutional rights as analogous to other constitutional protections that require affirmative action by the rights-holder. The choice was constrained by the South Dakota Supreme Court's prior interpretive doctrine, including its refusal to read constitutional provisions to absurd results (Brendtro) and its requirement to give effect to all parts of a provision (Breck).

The opinion's qualified-immunity discussion was significant for practical compliance. Without that section, officials would have faced personal liability exposure for every release of information that any victim later said violated their rights. The opinion gave officials a defensible posture: follow this framework, and rely on the AG's opinion as good-faith authority.

Citations and references

Constitutional provision:
- S.D. Const. art. VI, § 29 (Marsy's Law victim rights amendment)

Statutes (as cited in the opinion):
- SDCL 1-11-1(5) (AG opinion authority)
- SDCL 1-27-1, 1-27-1.1 (presumption of openness for public records)
- SDCL 23-3-27 (law enforcement identification of victims)
- SDCL 23-4-3 (criminal justice information)
- SDCL 23-5-11 (calls for service)
- SDCL 23A-14-2, -3 (compulsory process)
- SDCL 12-3-1, -1.1, 12-4-1, 12-18-1, 12-18-7.1, 12-19-1 (voter qualifications and procedures)

Cases (selected, as cited in the opinion):
- 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
- Brendtro v. Nelson, 2006 S.D. 71, 720 N.W.2d 670
- Spink County v. Heinhold Hog Market, Inc., 299 N.W.2d 811 (S.D. 1980)
- Mitchell v. Forsyth, 472 U.S. 511 (1985)
- Edwards v. Arizona, 451 U.S. 477 (1981)
- Berghuis v. Thompkins, 560 U.S. 370 (2010)
- 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/opinionhtml.aspx?id=1685

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:

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

• 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:

• 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.

• 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:

• 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 wavier 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.C.t. 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