#27903-r-GAS
2017 S.D. 57
                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                      ****

ARGUS LEADER MEDIA,                            Plaintiff and Appellant,

      v.

LORIE HOGSTAD, in her official
capacity as Sioux Falls City Clerk,
TRACY TURBAK, in his official
capacity as Sioux Falls Finance
Officer, and CITY OF SIOUX FALLS,              Defendants and Appellees.


                                      ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                      ****

                       THE HONORABLE JOHN PEKAS
                                Judge

                                      ****


JON E. ARNESON
Sioux Falls, South Dakota                    Attorney for plaintiff and
                                             appellant.


JAMES E. MOORE
JORDAN J. FEIST of
Woods, Fuller, Shultz &
 Smith PC
Sioux Falls, South Dakota                    Attorneys for defendants and
                                             appellees.

                                      ****

                                             ARGUED JANUARY 11, 2017
                                             OPINION FILED 09/20/17
#27903

SEVERSON, Justice

[¶1.]        The City of Sioux Falls entered into a confidential settlement

agreement with several contractors that built the Denny Sanford Premier Center in

Sioux Falls, S.D. The settlement agreement’s confidentiality clause provided that,

with the exception of the settlement amount, the details of the contract would

remain confidential. A reporter for the Argus Leader sought a copy of the

agreement; the City denied the request. The Argus Leader asked the City to

reconsider its position, but the City refused to provide a copy of the agreement.

After the denial, the Argus Leader commenced this action, alleging that the

agreement is a public record and seeking an order compelling the City to provide a

copy. The circuit court determined that the settlement agreement was not open to

public inspection under SDCL chapter 1-27. Argus Leader appeals. We reverse.

                                    Background

[¶2.]        In 2014, the City of Sioux Falls raised questions regarding the

aesthetic appearance of the exterior siding of the newly constructed Denny Sanford

Premier Center. The City reached a settlement agreement with the general

contractor and four subcontractors of the project. The agreement addressed both

the final amounts due and the City’s dissatisfaction with the work. One of the

subcontractors later disputed the terms of the agreement. The City retained

outside counsel, who drafted a complaint to enforce the settlement agreement.

However, after further negotiation, the parties to the original agreement reached

another settlement agreement. The City’s outside counsel sent the drafted




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complaint with an admission of service to one of the subcontractors, but it did not

commence a lawsuit prior to settlement.

[¶3.]        In September 2015, the City announced through its website that it had

reached a global settlement of the dispute with the contractors of the Premier

Center. In October, a reporter for the Argus Leader contacted the city attorney and

requested a copy of the settlement between the City and the contractors involved in

construction of the Premier Center. The city attorney denied the request, citing

SDCL 1-27-1.5(20) and the agreement’s confidentiality provision as grounds for the

denial. The reporter sent another letter asking for the City to reconsider the denial.

Again, the City denied the request. On December 1, 2015, pursuant to SDCL 1-27-

38, the Argus Leader commenced a civil action contending that the agreement is a

public record and asking that the court order the City to produce a copy of the

agreement.

[¶4.]        Both the Argus Leader and the City moved for summary

judgment. The circuit court denied the Argus Leader’s motion and granted

summary judgment in favor of the City. The court found that pursuant to

SDCL 1-27-1.5(20), the contract is not open to public inspection. On appeal,

the Argus Leader contends the court erred when it determined that the

contract is not an open record. Furthermore, the Argus Leader contends that

even if the circuit court correctly interpreted SDCL 1-27-1.5(20), more specific

provisions provide that the settlement agreement is an open public record.




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                               Standard of Review

[¶5.]        We review the circuit court’s grant of summary judgment de novo to

determine whether genuine issues of material fact exist and whether the court

correctly applied the law. Heitmann v. Am. Family Mut. Ins. Co., 2016 S.D. 51, ¶ 8,

883 N.W.2d 506, 508-09. When there are no material facts in dispute, our review is

limited to determining whether the court correctly applied the law. Id. at 509.

                                      Analysis

[¶6.]        In 2009, the Legislature enacted the South Dakota Public Records Act,

which broadened the presumption of openness in regard to public records. Mercer v.

S.D. Att’y Gen. Off., 2015 S.D. 31, ¶ 17, 864 N.W.2d 299, 303; see also SDCL chapter

1-27. SDCL 1-27-1 provides:

             Except as otherwise expressly provided by statute, all citizens of
             this state, and all other persons interested in the examination of
             the public records, as defined in § 1-27-1.1, are hereby fully
             empowered and authorized to examine such public record, and
             make memoranda and abstracts therefrom during the hours the
             respective offices are open for the ordinary transaction of
             business and, unless federal copyright law otherwise provides,
             obtain copies of public records in accordance with this chapter.

             Each government entity or elected or appointed government
             official shall, during normal business hours, make available to
             the public for inspection and copying in the manner set forth in
             this chapter all public records held by that entity or official.

SDCL 1-27-1.1 states, in relevant part:

             Unless any other statute, ordinance, or rule expressly provides
             that particular information or records may not be made public,
             public records include all records and documents, regardless of
             physical form, of or belonging to this state, any county,
             municipality, political subdivision, or tax-supported district in
             this state, or any agency, branch, department, board, bureau,
             commission, council, subunit, or committee of any of the
             foregoing.

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Other than SDCL 1-27-1.5(20), the City does not contend that “any other statute,

ordinance, or rule expressly provides” that the contract “may not be made public.”

SDCL 1-27-1.5 states, in relevant part,

             The following records are not subject to §§ 1-27-1, 1-27-1.1, and
             1-27-1.3: . . .

                    (20) Any document declared closed or confidential by court
                    order, contract, or stipulation of the parties to any civil or
                    criminal action or proceeding[.]

[¶7.]        The dispute over SDCL 1-27-1.5(20) arises from an ambiguous trailing

modifier. The parties dispute whether the phrase “of the parties to any civil or

criminal action or proceeding” modifies “contract” or only “stipulation[.]” The City

maintains that the circuit court correctly determined that “The Doctrine of the Last

Antecedent” controls the matter; the phrase only modifies “stipulation.” “Under the

rule [of the last antecedent], the modifying clause is confined to the last antecedent,

unless there is something in the [subject matter or] dominant purpose of the

provision that requires a different interpretation.” Hoglund v. Dakota Fire Ins. Co.,

2007 S.D. 123, ¶ 21, 742 N.W.2d 853, 859 (citing Rogers v. Allied Mut. Ins. Co., 520

N.W.2d 614, 617 (S.D. 1994)); see also Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 146 (2012). Thus, the City argues, the

contract falls within “any document [that has been] declared closed or confidential

by . . . contract,” because it declares itself confidential. According to the Argus

Leader, the phrase “of the parties to any civil or criminal action or proceeding”

modifies “contract” as well. The Argus Leader contends that using the rule of the

last antecedent would unreasonably expand the provision by allowing the

government to contract around the entirety of the Public Records Act and that the

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Public Records Act’s primary purpose requires an interpretation different than that

given SDCL 1-27-1.5(20) by the circuit court. Therefore, in this case, the Argus

Leader maintains that the contract remains an open record because none of the

parties to the contract commenced litigation.

[¶8.]         Typically, the syntactic canons applicable to this type of phrasing

would be the “Last Antecedent Canon” 1 or “Series-Qualifier Canon.” 2 See Scalia &

Garner, supra ¶ 7, at 144-151. Those canons would generally call for the phrase “of

the parties” to modify either the word “stipulation” alone or to modify each of the

words: “court order”; “contract”; and “stipulation.” However, Scalia and Garner

recognize that “[p]erhaps more than most of the other canons, [the series-qualifier

canon] is highly sensitive to context. Often the sense of the matter prevails.” Id. at

150. Clearly, “of the parties to any civil or criminal action or proceeding” cannot

modify “court order.” The City asserts that the “Legislature could have written the

statute such that the phrase ‘of the parties to any civil or criminal action or

proceeding’ would modify the word ‘contract.’ Instead the Legislature placed the


1.      “Strictly speaking, only pronouns have antecedents, and the [Nearest-
        Reasonable-Referent] [C]anon . . . also applies to adjectives, adverbs, and
        adverbial or adjectival phrases—and it applies not just to words that precede
        the modifier, but also to words that follow it.” Scalia & Garner, supra ¶ 7,
        at 152. Although we are dealing with a modifier that would seem to fall
        under this canon, the nearest-reasonable-referent canon does not apply
        because the statute contains a parallel series of nouns. See id. (“When the
        syntax involves something other than a parallel series of nouns or verbs, a
        prepositive or postpositive modifier normally applies only to the nearest
        reasonable referent.”).

2.      The “Series-Qualifier Canon” provides that “when there is a straightforward,
        parallel construction that involves all nouns or verbs in a series, a prepositive
        or postpositive modifier normally applies to the entire series.” Scalia &
        Garner, supra ¶ 7, at 147 (emphasis added).

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#27903

modifier at the end of the sentence and isolated the word ‘contract’ between

commas.”

[¶9.]        Nevertheless, comma placement is not dispositive. Punctuation may

be a useful tool to interpret statutes, but is not necessarily determinative. See

SDCL 2-14-8 (“Punctuation shall not control or affect the construction of any

provision when any construction based on such punctuation would not conform to

the spirit and purpose of such provision.”); see also Scalia & Garner, supra ¶ 7, at

140-43 (explaining that sometimes the court is “textually justified in ignoring the

grammarian’s reading” and must “override[] punctuation”). Grammatical rules “can

be overcome by other textual indications of meaning. . . . Grammatical usage is one

of the means (though not the exclusive means) by which the sense of a statute is

conveyed.” Scalia & Garner, supra ¶ 7, at 140-41. As we have explained, “[s]ince

statutes must be construed according to their intent, the intent must be determined

from the statute as a whole, as well as enactments relating to the same subject. In

construing statutes together it is presumed that the legislature did not intend an

absurd or unreasonable result.” Hayes v. Rosenbaum Signs & Outdoor Advert., Inc.,

2014 S.D. 64, ¶ 28, 853 N.W.2d 878, 885 (quoting Martinmaas v. Engelmann, 2000

S.D. 85, ¶ 49, 612 N.W.2d 600, 611).

[¶10.]       Rather than syntactic canons, our interpretation of SDCL 1-27-1.5(20)

relies on contextual canons. See Scalia & Garner, supra ¶ 7, at 167-69 (discussing

“whole–text canon”). In this case, the subject matter and dominant purpose of the

Public Records Act require a different interpretation than that advanced by the

City. See Hoglund, 2007 S.D. 123, ¶ 21, 742 N.W.2d at 859. We are guided by the


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#27903

presumption of openness in SDCL 1-27-1 and the directive in SDCL 1-27-1.3 to

construe certain provisions—including SDCL 1-27-1.5—liberally in favor of open,

public records. SDCL 1-27-1.3 provides in part:

             The provisions of §§ 1-27-1 to 1-27-1.15, inclusive, and 1-27-4
             shall be liberally construed whenever any state, county, or
             political subdivision fiscal records, audit, warrant, voucher,
             invoice, purchase order, requisition, payroll, check, receipt, or
             other record of receipt, cash, or expenditure involving public
             funds is involved in order that the citizens of this state shall
             have the full right to know of and have full access to information
             on the public finances of the government and the public bodies
             and entities created to serve them.

There is no question that in this case we are dealing with a record of an expenditure

involving public funds. Therefore, in accordance with that presumption of openness

and the requirement that we construe the statute liberally in favor of openness, we

must narrowly construe the exception with subdivision (20). 3 In doing so, we grant

the exception, which could have more than one interpretation, a meaning that does

not render the entire statute ineffective. See Scalia & Garner, supra ¶ 7, at 63-65

(presenting a presumption against ineffectiveness as a fundamental principle of


3.    The dissent asserts that a presumption of openness does not apply to the
      exceptions. Infra ¶¶ 25-26. The dissent’s approach construes the exception
      in isolation. Instead, we construe the provision narrowly in light of the whole
      enactment. The relevant statutes were all passed in one legislative
      enactment in 2009. 2009 S.D. Sess. Laws ch. 10. Such a proposition is
      hardly “breathtaking” considering the Legislature has explicitly mandated
      that the exception be construed in such a way. SDCL 1-27-1.3 requires this
      Court to “liberally construe[]” SDCL 1-27-1.5 “in order that the citizens of
      this state shall have the full right to know of and have full access to
      information on the public finances of the government and the public bodies
      and entities created to serve them.” Construing the exception solely in the
      light of the exception’s purpose to exclude ignores the Legislature’s direction
      and creates an exception that swallows the Public Record Act’s provisions.
      Such a construction would result in an absurd reading of an ambiguous
      statute.

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#27903

statutory interpretation). Such a construction leads us to conclude that the

modifier applies to “contract” as well as “stipulation.”

[¶11.]       The context of subdivision (20) does not indicate the Legislature

intended to create a broad exception allowing the government to execute a contract

declaring “[a]ny document . . . closed or confidential[.]” To read SDCL 1-27-1.5(20)

in such a manner would be contrary to the presumption of openness. It would also

be contrary to the Legislature’s directive that we construe SDCL 1-27-1.5 “in order

that the citizens of this state shall have the full right to know of and have full

access to information on the public finances of the government and the public bodies

and entities created to serve them.” SDCL 1-27-1.3. Instead, it is clear that the

context of subdivision (20) contemplates documents pertaining to the judicial

process rather than allowing the government to conceal “any document” that it

possesses and does not wish to disclose.

[¶12.]       Therefore, the modifier “of the parties to any civil or criminal action or

proceeding” modifies “contract.” Here, the city and contractors were not parties to a

civil or criminal proceeding. See SDCL 1-27-1. Accordingly, the City must make

the settlement contract “available to the public for inspection and copying in the

manner set forth in . . . chapter [1-27].” The City notes that it was ready to begin

litigation over the matter and that enforcing the provision in this way will lead to

an odd result that discourages parties from settling potential lawsuits.

Nevertheless, we confine ourselves to what the Legislature said “rather than what

[we] think it should have said[.]” Martinmaas, 2000 S.D. 85, ¶ 49, 612 N.W.2d at

611 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17). Nothing


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#27903

within the Public Records Act would suggest that the Legislature contemplated

anticipated litigation, as opposed to commenced litigation, when it enacted this

exception, and thus, this contract remains an open record.

[¶13.]       Finally, the Argus Leader also maintains that the provisions of SDCL

9-14-17; 9-14-21; and 9-18-2 are more specific statutes that control this matter. See

SDCL 1-27-33 (“The provisions of this chapter do not supersede more specific

provisions regarding public access or confidentiality elsewhere in state or federal

law.”). SDCL 9-14-17 provides:

             The municipal finance officer shall keep an office at a place
             directed by the governing body. The finance officer shall keep
             the corporate seal, all papers and records of the municipality,
             and a record of the proceedings of the governing body, whose
             meetings the finance officer shall attend. The finance officer
             shall draw and countersign all warrants on the treasury in
             pursuance of orders or resolutions of the governing body and
             keep a full and accurate account of all such warrants in books
             provided for that purpose. The finance officer shall make or
             cause to be made estimates of the expenses of any work to be
             done by the municipality and countersign all contracts made on
             its behalf and certificates of work authorized by any committee
             of the governing body or by any municipal officer. However, the
             finance officer may destroy any record which the records
             destruction board, acting pursuant to § 1-27-19, declares to have
             no further administrative, legal, fiscal, research, or historical
             value.


SDCL 9-14-21 states:

             The municipal finance officer shall examine all reports, books,
             papers, vouchers, and accounts of the treasurer; audit and
             adjust all claims and demands against the municipality before
             they are allowed by the governing body; and keep a record of the
             finance officer’s acts and doings. The finance officer shall keep a
             book in which the finance officer shall enter all contracts. The
             book shall include an index to the contracts and shall be open to
             the inspection of all parties interested. The finance officer shall
             perform such other duties as may be required by ordinance,

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#27903

                resolution, or direction of the governing body. However, the
                finance officer may destroy any record which the Records
                Destruction Board, acting pursuant to § 1-27-19, declares to
                have no further administrative, legal, fiscal, research, or
                historical value.

Finally, SDCL 9-18-2 states: “Every municipal officer shall keep a record of the

official acts and proceedings of his office, and such record shall be open to public

inspection during business hours under reasonable restrictions.”

[¶14.]          The Argus Leader is correct that these statutes deal more specifically

with certain aspects of municipalities and their record keeping. The circuit court

determined that nothing within SDCL 9-14-17; 9-14-21; or 9-18-2 requires the

municipality to provide the contract for inspection. However, we need not address

whether the court was correct in its decision on the scope of the statutes. Those

three statutes do not conflict with our reading of SDCL 1-27-1.5. Accordingly, we

need not address the Argus Leader’s final argument.

                                       Conclusion

[¶15.]          The settlement contract between the City and the contractors of the

Denny Sanford Premier Center does not meet the requirements under SDCL 1-27-

1.5(20). Therefore, it is a public record open to inspection, and the City must make

it available in accordance with SDCL chapter 1-27.

[¶16.]          GILBERTSON, Chief Justice, and KERN, Justice, and KONENKAMP,

Retired Justice, concur.

[¶17.]          KONENKAMP, Retired Justice, sitting for WILBUR, Retired Justice,

disqualified.

[¶18.]          ZINTER, Justice, dissents.


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ZINTER, Justice (dissenting).

[¶19.]       The Court’s interpretation of a statute today requires the removal of a

comma and the addition of words to the text. The Court states that it is guided by

the purpose of a general act rather than the statutory language we must interpret.

Using an act’s general purpose to change text is a breathtaking proposition. It

should be so because, as this case demonstrates, the Court’s interpretation makes

other statutory language meaningless; it is based on a “guiding purpose” that is

necessarily contrary to the purpose of the language that is being construed; and it

eschews well-accepted rules of statutory and grammatical construction. For these

reasons, I respectfully dissent.

[¶20.]       In 2009, the Legislature revised South Dakota’s public records laws.

See 2009 S.D. Sess. Laws ch. 10 (the Act). As codified, the general Act first defines

government records that are subject to public disclosure. SDCL 1-27-1.1. It then

sets forth twenty-seven exceptions. SDCL 1-27-1.5 (providing that the excepted

documents are not “subject to” the public disclosure statute and are not “subject to”

SDCL 1-27-1.3, the statute requiring liberal construction). The exception at issue in

this dispute concerns the following kinds of documents:

             Any document declared closed or confidential by court order,
             contract, or stipulation of the parties to any civil or criminal
             action or proceeding . . . .

SDCL 1-27-1.5(20) (emphasis added).

[¶21.]       The question is whether the exception for contracts is limited to

contracts made by parties in civil or criminal litigation. This is a question of




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standard English: is the noun “contract” modified by the trailing prepositional

phrase “of the parties to any civil or criminal action or proceeding”?

[¶22.]         Subdivision (20) lists three methods by which government documents

become closed or confidential, and each method is separated by a comma: “court

order, contract, or stipulation.” Id. The modifying prepositional phrase is attached

to only the last noun, “stipulation.” Id. Under any understanding of standard

English, a modifying prepositional phrase at the end of a series of parallel nouns

modifies either the last noun in the series (stipulation) or all nouns in the series

(court order, contract, and stipulation)—i.e., the grammatical rule of the last

antecedent. See infra ¶ 28. Thus, if the Court is correct that the prepositional

phrase modifies more than the last noun (stipulation), then the phrase must modify

all three nouns, including the first (court order). But as the Court correctly

observes, such a result would be absurd. 4 Obviously, there can be no “court order of

the parties to any civil or criminal action or proceeding.” Only a court may enter a

court order. Therefore, under standard English, the modifying prepositional phrase

cannot modify “contract.”

[¶23.]         Nevertheless, the Argus Leader argues we should just construe the

statute to have the prepositional phrase modify two (but not all three) of the listed

nouns. The Argus Leader not only fails to cite any rule or understanding of English

that supports its proposed ad hoc modification of a serial list of nouns, it contends



4.       When using canons of construction to interpret statutes together, we should
         do so in a way that does not lead to “an absurd or unreasonable result.” See
         Hayes v. Rosenbaum Signs & Outdoor Advert., Inc., 2014 S.D. 64, ¶ 28,
         853 N.W.2d 878, 885.

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the second comma in the series should be “ignored or treated as a mistake.” The

Court agrees to remove the comma between “contract” and “stipulation.” The Court

does so “guided by” the general Act’s “presumption of openness.” Supra ¶ 10.

[¶24.]       The Court must also add additional words to the statute. The only way

to grammatically modify the last two of the three nouns is to not only delete the

second comma, but also read the words “or by” into the text. Thus, the Court

amends the statute’s text to read as follows (with its additional words italicized and

its deleted punctuation stricken):

             Any document declared closed or confidential by court order, or
             by contract, or stipulation of the parties to any civil or criminal
             action or proceeding.

This type of judicial “construction” is not permitted. We do not, under the guise of

judicial construction, add or delete text. In re Marvin M. Schwan Charitable

Found., 2016 S.D. 45, ¶ 23, 880 N.W.2d 88, 94; State v. Moss, 2008 S.D. 64, ¶ 15,

754 N.W.2d 626, 631; see also City of Deadwood v. M.R. Gustafson Family Tr.,

2010 S.D. 5, ¶ 9, 777 N.W.2d 628, 632.

[¶25.]       The Court’s construction also renders the word “contract” meaningless.

In the context of litigation, a contract and a stipulation are the same thing:

agreements of the parties. Because agreements to make documents confidential by

stipulation are expressly limited to those agreements made by parties in litigation,

construing that same limitation into contractual agreements adds nothing to the

statute. A contractual agreement to confidentiality is a stipulation to

confidentiality. Thus, declaring a document closed or confidential by “contract”

becomes meaningless and is surplusage under the Court’s construction. The Argus


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Leader conceded this point in oral argument. We should not “assume that the

Legislature intended [any] part of [this] statutory scheme be rendered mere

surplusage.” See Pitt-Hart v. Sanford USD Med. Ctr., 2016 S.D. 33, ¶ 13,

878 N.W.2d 406, 411.

[¶26.]        The Court contends that removing the comma is warranted by SDCL

2-14-18. Supra ¶ 9. The Court correctly notes that under SDCL 2-14-8,

punctuation “shall not control or affect the construction of any provision when any

construction based on such punctuation would not conform to the spirit and purpose

of such provision.” (Emphasis added.) But here, the Court’s removal of the comma

is not based on the spirit and purpose of such provision; i.e., the legislative

exception in SDCL 1-27-1.5(20). It is based on a presumption of openness that the

Court takes from other provisions in the general act. Moreover, the Legislature

expressly set aside the general Act’s “presumption of openness” when it enacted the

exceptions. SDCL 1-27-1 (“Except as otherwise expressly provided by statute, . . . all

citizens . . . are authorized to examine . . . public records . . . .” (emphasis added));

SDCL 1-27-1.5 (“The following records are not subject to §§ 1-27-1, 1-27-1.1, and 1-

27-1.3 . . . .” (emphasis added)). By using a purpose that is necessarily contrary to

the purpose of the language that is being construed, the Court disregards rather

than ascertains legislative intent.

[¶27.]        The Court also contends its changes to the text are warranted by the

general Act’s “whole-text,” which includes the “presumption of openness.” Supra

¶ 10 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 167-169 (2012)). In my view, the Court misapplies the “whole-text”


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canon authority it cites. The Legislature enacted the exceptions for the purpose of

limiting the general rule of openness. See SDCL 1-27-1.5 (“The following records

are not subject to §§ 1-27-1, 1-27-1.1, and 1-27-1.3 . . . .” (emphasis added)).

Therefore, in the words of the Court’s own authority, focusing on the purpose of the

general act rather than the limiting exception abuses the whole-text canon. See

Scalia & Garner, supra, at 168. “[L]imitations on a statute’s reach are as much a

part of the statutory purpose as specifications on what is to be done.” Id. “It is not

a proper use of the [whole-text] canon to say that since the overall purpose of the

statute is x, any interpretation of the text that limits the achieving of x must be

disfavored.” Id. But that is exactly how the Court uses the whole-text canon to

construe the exception, 5 a use we have expressly rejected. In re Expungement of

Oliver, 2012 S.D. 9, ¶ 9, 810 N.W.2d 350, 352 (“[I]t is inappropriate to select one

statute on a topic and disregard another statute which may modify or limit the

effective scope of the former statute.”).

[¶28.]         This case should be resolved using standard English. We should apply

the well-accepted rule of the last antecedent: “[I]t is the general rule of statutory as

well as grammatical construction that a modifying clause is confined to the last

antecedent unless there is something in the subject matter or dominant purpose

which requires a different interpretation.” Kaberna v. Sch. Bd. of Lead–Deadwood


5.       The Court also attempts to justify its use of the whole-text canon by noting
         that SDCL 1-27-1.3 requires courts to liberally construe the Act. See supra
         n.3 (citing SDCL 1-27-1.3). But SDCL 1-27-1.3 does not apply. The
         Legislature specifically provided that the exceptions in SDCL 1-27-1.5 “are
         not subject to” SDCL 1-27-1.3. Moreover, even if liberal construction were
         required, liberal construction does not justify a court’s removal of punctuation
         and addition of text.

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Sch. Dist. 40-1, 438 N.W.2d 542, 543 (S.D. 1989) (emphasis added). Here, the

express purpose of SDCL 1-27-1.5 is to exclude certain government documents from

the general presumption of openness, a purpose that is consistent with the

exception. Therefore, we should hold that the phrase “of the parties to any civil or

criminal action or proceeding” modifies only “stipulation,” the last antecedent. It is

only by using this usual and ordinary understanding of the English language that

we avoid making changes in punctuation and text; avoid creating absurdities; and

avoid rendering other text meaningless.

[¶29.]       The Argus Leader argues the exception in SDCL 1-27-1.5(20) is a bad

law that was poorly drafted and needs revision. But under our Constitution, it is

not this Court’s role to fix poorly drafted statutes—the “power to fix statutes

substantively would give the Judicial Branch too much leeway to prefer its views

about what makes for ‘good’ laws over those of the Legislative Branch.” Jaskolski v.

Daniels, 427 F.3d 456, 462 (7th Cir. 2005).

[¶30.]       “Contract” means “contract.” Because the Legislature authorized

government entities to enter into confidential settlement contracts without having

to start a lawsuit, we should affirm the circuit court. The Argus Leader’s request to

change the punctuation and text of the statute should be made to the Legislature,

not the courts.




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