#25631-JKM

2011 S.D. 55

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *
RAPID CITY JOURNAL,
ASSOCIATED PRESS and
SOUTH DAKOTA NEWSPAPER
ASSOCIATION,                                 Applicants,

      v.

THE HONORABLE JOHN J. DELANEY,
SOUTH DAKOTA SEVENTH CIRCUIT
COURT JUDGE,                                 Respondent.

                                   * * * *

                            ORIGINAL PROCEEDING

                                   * * * *

JON E. ARNESON
Sioux Falls, South Dakota                    Attorney for applicants
                                             Associated Press and
                                             South Dakota Newspaper
                                             Association.

RODNEY SCHLAUGER of
Bangs, McCullen, Butler,
 Foye and Simmons, LLP
Rapid City, South Dakota                     Attorneys for applicant
                                             Rapid City Journal.
MARTY J. JACKLEY
Attorney General

JEFFREY P. HALLEM
HAROLD H. DEERING, JR.
Assistant Attorneys General
Pierre, South Dakota                         Attorneys for respondent.

                                   * * * *
                                             ARGUED ON MARCH 21, 2011

                                             OPINION FILED 09/07/11
#25631

MEIERHENRY, Retired Justice

[¶1.]         This is an original proceeding for an alternative writ of mandamus or

prohibition brought by the Rapid City Journal, the Associated Press, and the South

Dakota Newspaper Association (collectively referred to as the Media) against the

Honorable John J. Delaney, circuit court judge. The Media brought this action

because Judge Delaney (1) imposed a gag order on the parties and (2) closed the

trial and court records in a civil action involving the shareholders of Bear Country

USA, Inc. The Media now requests that we grant a permanent writ of mandamus

or prohibition requiring Judge Delaney to rescind “both the participant gag order

and closure order and prohibit[ ] him from enforcing either.” 1



1.      The Media asserts that either a writ of mandamus or prohibition is “logically
        appropriate” in this matter. In its petition to commence an original
        mandamus or prohibition proceeding, the Media stated that “from the
        affirmative – mandamus – perspective, [the] Media are asking the Supreme
        Court to ‘compel the admission of a party to the use and enjoyment of a right .
        . . to which [they are] entitled, and from which [they are] unlawfully
        precluded by [Judge Delaney].’” See SDCL 21-29-1. “From the negative –
        prohibition – view, [the] Media are requesting the Court to issue a writ that
        ‘arrests the [judicial] proceedings . . . in excess of [Judge Delaney’s]
        jurisdiction . . . or . . . [legal] powers of authority.’” See SDCL 21-30-1.
        Although this distinction does not matter in this case as the relief sought is
        the same under either mandamus or prohibition, we analyze this application
        as a writ of prohibition by following Jundt v. Fuller, 2007 S.D. 62, ¶ 14, 736
        N.W.2d 508, 514:

              It has been held that: “a court may issue a writ [of prohibition] to
              confine a lower court to its proper jurisdiction, to compel the
              court to exercise a jurisdiction properly before it, or to prevent a
              clear abuse of discretion by the lower court.” In re State of S.D.,
              692 F.2d 1158, 1160 n.3 (8th Cir. 1982). See also In re State, 180
              S.W.3d 423, 425 (Tex. App. 2005) (writ of prohibition operates
              like injunction issued by superior court to control, limit, or
              prevent action in court of inferior jurisdiction). Thus, in Swezy v.
              Bart-Swezy, 866 So. 2d 1248 (Fla. Dist. Ct. App. 2004), the
                                                                      (continued . . .)
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                                       Background

[¶2.]          Bear Country is a family-owned South Dakota corporation. The

underlying action involved a dispute among Bear Country’s family-member

shareholders concerning the management and control of the business. The family-

member shareholders were split into two factions. Because the two factions could

not agree on the management and direction of Bear Country, they asked Judge

Delaney to determine Bear Country’s value so that one faction could buy out the

other.

[¶3.]          Before trial, the two factions anticipated submitting financial records

and expert testimony on Bear Country’s value as part of the evidence. Both factions

submitted motions to close the courtroom when the financial information and

testimony was to be presented on Bear Country’s value. The parties claimed that

the proceedings needed to be closed to protect “confidential business information.”


______________________
(. . . continued)
               Florida District Court of Appeals granted a writ of prohibition to
               prevent a circuit court’s referral of a child support matter to a
               general master in violation of that state’s procedural
               requirements. More recently, this Court issued its own writ of
               prohibition on January 18, 2007, directing a circuit court to
               vacate an invalid writ of prohibition that it had previously issued
               in a case. See Gray v. Gienapp, 2007 S.D. 12, 727 N.W.2d 808.

         Id. As in Jundt, “we hold that a writ of prohibition is the appropriate remedy
         for [Judge Delaney’s] actions here.” Id. See Sioux Falls Argus Leader v.
         Miller, 2000 S.D. 63, ¶ 12, 610 N.W.2d 76, 83 (recognizing that a writ of
         prohibition was the appropriate writ when media outlets alleged that circuit
         court judge exceeded his authority by ordering a gag order in a criminal case).
         Furthermore, “A writ of prohibition proceeding is not specifically a review of
         the record below; it is a review of the trial court’s jurisdiction and authority in
         respect to the challenged order and ‘is preventative in nature rather than
         corrective.’” Id. (quoting Black’s Law Dictionary at 1212 (6th ed. 1990)).

                                             -2-
#25631

Neither side objected. Judge Delaney entered an order that (1) imposed a gag order

on the parties and (2) closed the trial and court records. This order indicated that it

was to protect Bear Country’s “financial information,” “proprietary and financial

matters,” and “trade secrets and proprietary information.”

[¶4.]        After learning of Judge Delaney’s order, the Media moved to intervene.

The Media asserted that Judge Delaney did not have the authority to impose a gag

order and close court proceedings and records. Judge Delaney rejected the Media’s

arguments. The Media then petitioned this Court for a writ of mandamus or

prohibition. The Media asserted that Judge Delaney’s gag order “unlawfully

interfered with Media’s First Amendment right to gather and report the news.” The

Media also asserted “that Judge Delaney’s order excluding them from most of the

court trial and court record improperly infringed on their qualified First

Amendment and common law right of access to courts, trial participants and

record.”

[¶5.]        After reviewing the Media’s petition, we granted the alternative writ

because the Media did not have “a plain, speedy and adequate remedy in the

ordinary course of law.” We ordered Judge Delaney to show cause why the “writ

should not be made permanent and why this Court should not enter a peremptory

writ of mandamus directing [Judge Delaney] to rescind [his] orders of April 21,

2010, nunc pro tunc to April 19, 2010.”




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#25631

                                       Analysis

Mootness

[¶6.]        Judge Delaney initially argues that the Media’s claims are moot

because the Media had “a plain, speedy, and adequate remedy at law” in the form of

a direct appeal. The Media initially filed both a notice of appeal and this writ to

ensure that it complied with Court rules. The Media dismissed the direct appeal

after we granted the alternative writ. By accepting original jurisdiction and

granting the alternative writ, we acknowledged that seeking an alternative writ

was the appropriate procedure.

[¶7.]        Judge Delaney also claims the Media’s issues are moot because the

trial has been completed and “there are no further proceedings which the public

may attend and the parties are free to speak even if the mandamus relief” is not

granted. Accordingly, Judge Delaney concludes that “[m]andamus cannot compel

an act – opening the trial to the public, or allowing parties the ability to speak to

the media – that [are] no longer possible to perform.”

[¶8.]        Although Bear County’s trial is complete, we will consider this case

under an exception to the mootness doctrine because the issue presented is “capable

of repetition yet evading review.” Sullivan v. Sullivan, 2009 S.D. 27, ¶ 12, 764

N.W.2d 895, 899. This exception applies when: “(1) the challenged action [is] in its

duration too short to be fully litigated prior to cessation or expiration, and (2) there

[is] a reasonable expectation that the same complaining party [will] be subject to

the same action again[.]” Id. (citing Matter of Woodruff, 1997 S.D. 95, ¶ 15, 567

N.W.2d 226, 229 (citing Rapid City Journal v. Cir. Ct. of the Seventh Jud. Cir., 283


                                           -4-
#25631

N.W.2d 563, 565-66 (S.D. 1979) (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546,

96 S. Ct. 2791, 2797, 49 L. Ed. 2d 683, 690 (1976)))). Here, the Media’s challenge

was not fully litigated because Bear Country’s action ended before the Media’s

petition for an alternative writ was granted. See id. Additionally, there is a

“reasonable expectation” that the Media will be prevented from attending court

proceedings in the future under similar circumstances. See id. ¶ 13. We therefore

address the issues presented.

Right of Access to Trials

[¶9.]        We first address whether the media and public have a qualified right

to attend a civil trial and access documents filed with a court. It is established that

a right of access to civil court proceedings exists. See Miller, 2000 S.D. 63, ¶ 10, 610

N.W.2d at 82 (recognizing the media and public’s equal First Amendment right to

attend court proceedings). But whether that right stems from the First Amendment

or the common law has not been specifically addressed by this Court. Both the

First Amendment and the common law involve a presumption of openness, but the

scrutiny required of the trial judge’s decision to close the proceedings differs. Under

a First Amendment analysis, the presumption of openness can only be overcome

with a showing of an “overriding interest based on findings that closure is essential

to preserve higher values and is narrowly tailored to serve that interest.” Press-

Enterprise Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S. Ct.

819, 823, 78 L. Ed. 2d 629 (1984). The common law, on the other hand, balances the

competing interests of the parties. With either analysis, we review the trial court’s

findings of fact under a clearly erroneous standard, its application of the law de


                                          -5-
#25631

novo, and the ultimate decision to close a proceeding for an abuse of discretion. See

In the Matter of M.C., 527 N.W.2d 290, 293 (S.D. 1995). 2

[¶10.]         In applying a First Amendment analysis, the United States Supreme

Court held in Richmond Newspapers, Inc. v. Virginia that “the right to attend

criminal trials is implicit in the guarantees of the First Amendment: without the

freedom to attend such trials, which people have exercised for centuries, important

aspects of freedom of speech and of the press could be eviscerated.” 448 U.S. 555,

580, 100 S. Ct. 2814, 2829, 65 L. Ed. 2d 973 (1980) (citations and quotations

omitted). The Supreme Court in a later case highlighted the value of an open trial

as follows:

               The open trial thus plays as important a role in the
               administration of justice today as it did for centuries before our
               separation from England. The value of openness lies in the fact
               that people not actually attending trials can have confidence
               that standards of fairness are being observed; the sure
               knowledge that anyone is free to attend gives assurance that
               established procedures are being followed and that deviations
               will become known. Openness thus enhances both the basic
               fairness of the criminal trial and the appearance of fairness so
               essential to public confidence in the system.

Press-Enterprise Co., 464 U.S. at 508, 104 S. Ct. at 823 (citing Richmond

Newspapers, Inc., 448 U.S. at 569-71, 100 S. Ct. at 2823-24).

[¶11.]         Justification for closing a criminal trial must be “weighty,” supported

by a compelling interest, and “narrowly tailored.” Id. at 509-510, 104 S. Ct. at 824




2.       We note from the start that a court’s decision to deny the media and public
         access to a trial is different from its decision to close court records.


                                            -6-
#25631

(quoting Globe Newspapers Co. v. Superior Ct., 457 U.S. 596, 102 S. Ct. 2613, 73 L.

Ed. 2d 248 (1982)). The Supreme Court explained:

             ‘[T]he circumstances under which the press and public can be
             barred from a criminal trial are limited; the State’s justification
             in denying access must be a weighty one. Where . . . the State
             attempts to deny the right of access in order to inhibit the
             disclosure of sensitive information, it must be shown that the
             denial is necessitated by a compelling governmental interest,
             and is narrowly tailored to serve that interest.’ The presumption
             of openness may be overcome only by an overriding interest
             based on findings that closure is essential to preserve higher
             values and is narrowly tailored to serve that interest. The
             interest is to be articulated along with findings specific enough
             that a reviewing court can determine whether the closure order
             was properly entered.

Id. at 509-510, 104 S. Ct. at 824 (quoting Globe Newspapers Co., 457 U.S. at 596,

102 S. Ct. at 2620). See also El Vocero de Puerto Rico, et al. v. Puerto Rico et al., 508

U.S. 147, 151, 113 S. Ct. 2004, 2006, 124 L. Ed. 2d 60 (1993). As noted by Justice

Brennan, closing a criminal trial to the public requires more than just an

agreement between the parties and the trial judge. See Richmond Newspapers,

Inc., 448 U.S. at 585, 100 S. Ct. at 2831 (Brennan, J., concurring).

[¶12.]       In a more recent case involving access to jury voir dire in a criminal

trial, the Supreme Court reiterated its prior rulings that:

             [a] public trial right rest[s] upon two different provisions of the
             Bill of Rights, [the First and Sixth Amendments] both applicable
             to the States via the Due Process Clause of the Fourteenth
             Amendment. . . . The Court has further held that the public
             trial right extends beyond the [Sixth Amendment Right of the]
             accused and can be invoked under the First Amendment. This
             requirement, too, is binding on the States.

Presley v. Georgia , __ U.S. __, __, 130 S. Ct. 721, 723, 175 L. Ed. 2d 675 (2010)

(citations and quotations omitted).


                                           -7-
#25631

[¶13.]       In Presley, a Georgia trial court did not allow a family member of the

defendant to sit in the courtroom during jury voir dire. The trial court denied a

motion for a new trial because it did not want family members intermingling with

prospective jurors because the jurors could overhear some “inadvertent comment or

conversation.” Id. at __, 130 S. Ct. at 722. The Georgia Supreme Court affirmed

and “rejected Presley’s argument that the trial court was required to consider

alternatives to closing the courtroom.” Id. The United States Supreme Court

reversed and stated:

             The conclusion that trial courts are required to consider
             alternatives to closure even when they are not offered by the
             parties is clear not only from this Court’s precedents but also
             from the premise that ‘the process of juror selection is itself a
             matter of importance, not simply to the adversaries but to the
             criminal justice system.’ The public has a right to be present
             whether or not any party has asserted the right.

Id. at __, 130 S. Ct. at 724-25 (citation omitted). The Supreme Court made it clear

that in order for a trial court to exclude the public, it must articulate and make

specific findings as to an overriding interest and must “consider all reasonable

alternatives to closure,” even if the parties have not proffered alternatives. Id. at

__, 130 S. Ct. at 725.

[¶14.]       We acknowledge that Supreme Court cases dealing with the public

right of access to trials have been in the context of criminal cases. The Eighth

Circuit Court of Appeals, however, applied the same principles to a civil proceeding

involving contempt. In re Iowa Freedom of Info. Council, 724 F.2d 658 (8th Cir.

1983). The court analyzed the issue as follows:

             In Globe Newspaper Co. the Court stated that two features of
             criminal trials explain why a right to access should be afforded

                                          -8-
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             protection by the First Amendment. First, the criminal trial has
             historically been open to the public. Second, such access can
             enhance the quality and safeguard the integrity of the fact-
             finding process and foster an appearance of fairness. Without
             going into historical analysis, this Court notes, as was noted by a
             plurality opinion of Chief Justice Burger, that “historically both
             civil and criminal trials have been presumptively open.” In
             addition, the presence of the public and press at civil proceedings
             will enhance and safeguard the quality of the fact-finding
             process, just as it does at criminal trials. Arguably, the public
             interest in securing the integrity of the fact-finding process is
             greater in the criminal context than the civil context, since the
             condemnation of the state is involved in the former but not the
             latter, but it is nonetheless true that the public has a great
             interest in the fairness of civil proceedings. Hence, we conclude
             that the protection of the First Amendment extends to
             proceedings for contempt, a hybrid containing both civil and
             criminal characteristics.

Id. at 661 (citations omitted).

[¶15.]       In that case, the Eighth Circuit upheld limited closure because the

record showed that trade secrets were involved. See id. The court recognized that

in order for a trial court to determine if trade secrets are involved, it would need an

in camera hearing, “as strictly limited as possible.” Id. The in camera hearing

would be closed but would be limited to testimony or evidence on “the issue of the

existence of trade secrets and the damage that disclosure of those secrets might

cause.” Id. at 662. The court further admonished the district court for “simply

accepting the representation of counsel . . . that trade secrets were involved.” Id. at

663. The court stated, “Whether trade secrets are involved or not, and whether

their revelation will cause damage to someone, are questions of fact, to be decided

after receiving evidence. In such an important matter, courts should not simply

take representations of interested counsel on faith.” Id. Additionally, the court

noted “that the presence of trade secrets will [not] in every case and at all events

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justify the closure of a hearing.” Id. at 663. Thus, “courts must proceed cautiously

and with due regard to the uniqueness of the particular facts before them.” Id.

[¶16.]       The Third Circuit Court of Appeals also determined that “the public

and the press possess a First Amendment and a common law right of access to civil

proceedings; indeed, there is a presumption that these proceedings will be open.”

Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). That case

involved alleged “sensitive” and “confidential” stockholder information. The

Publicker court determined that “to limit the public’s access to civil trials there

must be a showing that the denial serves an important governmental interest and

that there is no less restrictive way to serve that governmental interest.” Id. at

1070. The record “must demonstrate an overriding interest based on findings that

closure is essential to preserve higher values and is narrowly tailored to serve that

interest.” Id. at 1069 (citation omitted). The court emphasized the importance of

“findings specific enough that a reviewing court can determine whether the closure

order was properly entered.” Id. (citing Press-Enterprise, 464 U.S. at 510, 104 S. Ct.

at 824). Possible overriding interests warranting closure may involve such things

as trade secrets, attorney client privilege information, or contractual non-disclosure

agreements. Id. at 1073.

[¶17.]       In Publicker, the court reversed the trial court’s closure because it was

too extensive and constituted an abuse of discretion. Likewise, the trial court’s

sealing of certain transcripts was reversed. The trial court abused its discretion

because it “failed to articulate overriding interests based on specific findings

showing that the sealing of the transcripts essential to articulated interests of


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Publicker and . . . failed to consider less restrictive means to keep the information

from the public.” Id. The court noted that “sensitive information” will not in all

cases amount to “the kind of confidential commercial information that courts have

traditionally protected.” Id.

[¶18.]       In South Dakota, the media’s right of access to juvenile trials was

acknowledged in In the Matter of M.C., 527 N.W.2d at 293. At that time the law

provided that all juvenile trials were closed “unless the court [found] compelling

reasons to require otherwise.” Id. at 291 n.1. Although juvenile trials were closed

by statute, we agreed with the media that it had a “qualified constitutional right of

access” to a juvenile proceeding absent legislative design to protect and rehabilitate

juveniles. Id. at 293. This qualified right was first discussed in an earlier case,

Associated Press v. Bradshaw, 410 N.W.2d 577 (S.D. 1987), superseded by statute

SDCL 26-7A-36. Although we discussed the need to balance the various

constitutional rights and interests of the parties, we ultimately concluded that

closure could only occur if it was “necessary to preserve higher values.” Id. at 580.

We stated, “Closure of juvenile proceedings should not occur unless specific

supportive findings are made which demonstrate that closure is necessary to

preserve higher values and the order must be narrowly tailored to serve that

interest.” Id. at 580.

[¶19.]       “Specific supportive findings” led us to affirm the trial court’s closure

of a juvenile proceeding in In the Matter of Hughes County, 452 N.W.2d 128, 133

(S.D. 1990). There, the trial court considered the factors outlined in Bradshaw and

entered findings accordingly. These findings were not clearly erroneous and


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supported the closure decision. The State’s “strong interest in preserving the

confidentiality of juvenile proceedings” outweighed the public and media’s First

Amendment right of access. Id. at 132. The trial court had also considered

alternatives to closure that were rejected by the media. Additionally, the closure

was temporary, in that the trial court only closed the adjudicatory hearing, not the

dispositional hearing.

[¶20.]       In summary, the United States Supreme Court has established the

media and public’s First Amendment right of access to criminal trials. The Eighth

Circuit Court of Appeals extended that right to civil contempt trials. And our Court

has recognized the right as applied to juvenile trials. The rationale applied in

reaching those conclusions is similar and consistent – “openness enhances both the

basic fairness of . . . trials and the appearance of fairness so essential to public

confidence in the system.” Press-Enterprise Co., 464 U.S. at 508, 104 S. Ct. at 823

(citing Richmond Newspapers, Inc., 448 U.S. at 569-71, 100 S. Ct. at 2823-24).

Logically, the rationale for openness applies equally to civil trials. Open civil trials

also protect the integrity of the system and assure the public of the fairness of the

courts and our system of justice. We, therefore, hold that the First Amendment

affords the media and public a qualified right of access to civil trials in this state.

[¶21.]       The Publicker court succinctly set forth the procedure and substance a

trial court should follow before closing a trial. The court explained:

             Procedurally, a trial court in closing a proceeding must both
             articulate the countervailing interest it seeks to protect and
             make findings specific enough that a reviewing court can
             determine whether the closure order was properly entered.
             Substantively, the record before the trial court must
             demonstrate an overriding interest based on findings that

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             closure is essential to preserve higher values and is narrowly
             tailored to serve that interest.

733 F.2d at 1071 (citations and quotations omitted). We now adopt the Publicker

court’s analysis as it comports with, and augments, the review and analysis we

applied in In re M.C., 527 N.W.2d at 293, and In re Hughes County, 452 N.W.2d at

133.

The Procedure and Reasoning Used by Judge Delaney was Flawed.

[¶22.]        Turning to the case before us, we find several problems with the

procedure used and decision reached by Judge Delaney. First, Judge Delaney did

not correctly apply the First Amendment or the common law presumption of

openness. Second, he did not require the parties to show that closure was necessary

“to preserve higher values.” Third, he failed to “articulate[ ] . . . findings specific

enough that a reviewing court c[ould] determine whether the closure order was

properly entered.” And finally, he failed to narrowly tailor the closure order.

[¶23.]        Judge Delaney’s initial order excluding the media and public was

entered in response to motions from the parties. The order “closed the trial and

records of this matter from the public including the press.” After the media

intervened, Judge Delaney acknowledged that the first order may have been too

broad. He then modified his order closing all portions of the trial dealing with

“internal financial affairs (General Ledgers, P&L’s) of Bear Country and its

proprietary data (past and future plans for development, expansion, and the like)

and trade secrets (sources of stock, care and operating methods for maintaining the

health and exhibition of the stock, etc.).”



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[¶24.]        In determining Bear Country’s value, Judge Delaney found that “a

number of exhibits and testimony will directly involve trade secrets, proprietary

matters, or the internal financial information of Bear Country.” When and how

Judge Delaney arrived at that finding is unclear. The record does not indicate that

a prior in camera proceeding took place or that the parties had provided him with

information to support that finding. Judge Delaney’s conclusory findings appear to

be based on what he expected the evidence to be. Such conclusory findings are

insufficient and prevent meaningful appellate review.

[¶25.]        Further, Judge Delaney indicated that he closed the proceedings and

records based on SDCL 15-15A-8, which limits public access to certain court

records, and SDCL 37-29-5, which limits public access to trade secret information.

In reference to these two statutes, Judge Delaney stated: “Upon request of the

parties, there seems to be no leeway for the Court but to grant protection for these

items.” He reasoned that the legislature had “broad power” to close hearings, such

as juvenile cases and abuse and neglect cases; “Ergo, the aforementioned statutes

should receive the same respect.”

[¶26.]        Initially, Judge Delaney’s reliance on SDCL 15-15A-8 as authority to

close the trial is misplaced. SDCL 15-15A-8 does not pertain to trial closure. It

pertains only to court records and provides that confidential numbers and financial

documents can be excluded from public access. 3 Further, SDCL 15-15A-9 requires



3.       SDCL 15-15A-8 permits limiting public access to certain court records:

              The following information in a court record is not accessible to
              the public.
                                                                   (continued . . .)
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litigants to file a confidential information form to prevent public access to

confidential numbers and financial documents. In addition, the procedure for

accessing the confidential information is outlined in SDCL 15-15A-10, which allows

access “if the court finds that the public interest in granting access or the personal

interest of the person seeking access outweighs the privacy interests of the parties

or dependent children. In granting access the court may impose conditions

necessary to balance the interests consistent with this rule.” Id. 4 While SDCL 15-


______________________
(. . . continued)
                  (1)  Social security numbers, employer or taxpayer
                       identification numbers, and financial account
                       numbers of a party or party’s child.
                  (2)   Financial documents such as income tax returns,
                        W-2’s and schedules, wage stubs, credit card
                        statements, financial institution statements, credit
                        card account statements, check registers, and
                        other financial information.

4.     SDCL 15-15A-10 provides:

             (a)   Any person may file a motion, supported by affidavit
                   showing good cause, for access to confidential financial
                   documents. Written notice of the motion shall be
                   required.
             (b)   If the person seeking access cannot locate a party to
                   provide the notice required under this rule, after making
                   good faith reasonable effort to provide such notice as
                   required by applicable court rules, an affidavit may be
                   filed with the court setting forth the efforts to locate the
                   party and requesting waiver of the notice provisions of
                   this rule. The court may waive the notice requirement of
                   this rule if the court finds that further good faith efforts to
                   locate the party are not likely to be successful.
             (c)   The court shall allow access to confidential financial
                   documents, or relevant portions of the documents, if the
                   court finds that the public interest in granting access or
                   the personal interest of the person seeking access
                   outweighs the privacy interests of the parties or
                                                                    (continued . . .)
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15A-8 may have allowed Judge Delaney to deny access to certain information in the

court records, such as social security numbers or tax identification numbers, his

actual closure was much broader and inconsistent with statutory procedure. Based

on the broad closure order, we are unable on review to determine if a legitimate

reason existed to seal parts of the record. See United States v. McDougal, 103 F.3d

651, 656 (8th Cir. 1996).

[¶27.]         The trial court’s reliance on SDCL 37-29-5 is similarly misplaced. 5

This statute allows trial and record closure to “preserve the secrecy of an alleged

trade secret by reasonable means, which may include granting protective orders in

connection with discovery proceedings, holding in-camera hearings, sealing the

records of the action, and ordering any person involved in the litigation not to

disclose an alleged trade secret without prior court approval.” Id. 6 The trial court,


______________________
(. . . continued)
                  dependent children. In granting access the court may
                  impose conditions necessary to balance the interests
                  consistent with this rule.

5.       SDCL 37-29-5 provides:

               In an action under this chapter, a court shall preserve the
               secrecy of an alleged trade secret by reasonable means, which
               may include granting protective orders in connection with
               discovery proceedings, holding in-camera hearings, sealing the
               records of the action, and ordering any person involved in the
               litigation not to disclose an alleged trade secret without prior
               court approval.

6.       Trade secrets are afforded protection in some cases. See SDCL ch. 37-29 &
         SDCL ch. 1-27. SDCL 37-29-1(4) sets forth the definition of what constitutes
         a trade secret:

               (4) “Trade secret,” information, including a formula, pattern,
                                                                    (continued . . .)
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however, did not follow the procedure outlined in the statute. The trial court did

not conduct an in camera hearing, make specific findings, or narrowly limit closure

to the trade secret evidence. See SDCL ch. 37-29; Weins v. Sporleder, 1997 S.D.

111, ¶ 16, 569 N.W.2d 16, 20 (recognizing that the existence of a trade secret

requires both a legal and factual inquiry into whether the information in question

fits the statutory definition of a trade secret); Standard & Poor’s Corp., Inc. v.

Commodity Exch. News Serv., 541 F. Supp. 1273, 1278 (S.D.N.Y. 1982). In fact, a

review of the record indicates that the evidence at trial involved little, if any,

information concerning trade secrets. 7


______________________
(. . . continued)
               compilation, program, device, method, technique or process,
               that:

                    (i) Derives independent economic value, actual or
                    potential, from not being generally known to, and not
                    being readily ascertainable by proper means by, other
                    persons who can obtain economic value from its disclosure
                    or use; and
                    (ii) Is the subject of efforts that are reasonable under the
                    circumstances to maintain its secrecy.

7.     Below is a list of all witnesses who testified at Bear Country’s trial, an
       indication whether the media and public were excluded during their
       testimony, and a summary of the general subjects the witnesses discussed:

       Sean Casey: The media and public were excluded from the courtroom after
       Sean’s background with Bear Country was established. Testimony was given
       after the media and public were removed on the following topics: Sean’s
       position at Bear Country; Bear Country’s financial position, both general and
       specific; Bear Country’s growth; capital improvements; number of annual
       visitors; advertising strategy; Casey family dysfunction; Bear Country Board
       activities; and, Sean’s opinion on Bear Country’s value.

       Ken Simpson: While not entirely clear from the record, it appears that the
       media and public were excluded from all of Simpson’s testimony. Simpson is
                                                                  (continued . . .)
                                       -17-
#25631

______________________
(. . . continued)
         a real estate appraiser testifying about Bear Country’s value. He testified
         about his qualifications; the appraisal process, and his ultimate appraisal of
         Bear Country.

       Ericka Heiser: The media and public were excluded from all of Heiser’s
       testimony. Heiser is a CPA from Ketel Thorstenson, LLP testifying about
       Bear Country’s value. She testified about her qualifications; the valuation
       process used, and Bear Country’s value.

       Margaret Pauline Casey: President and founder of Bear Country. The media
       and public were initially excluded from hearing her testimony but were
       allowed to enter the courtroom after a break. Margaret testified about her
       position at Bear Country, conflicts related to a statue of Doc Casey
       (Margaret’s deceased husband and Bear Country’s co-founder), Bear
       Country’s revenue, Casey family dysfunction, legal fees, and Bear Country’s
       general financial position.

       Kevin Casey: The media and public were initially present but were asked to
       leave while Kevin was examined on financial matters. Kevin testified about
       his role at Bear Country, Bear Country’s finances, capital expenditures, and
       dividends. Kevin also testified as a rebuttal witness about Bear Country’s
       development plan.

       Dennis Casey: The media and public were excluded from all of Dennis’s
       testimony. Dennis testified about his role at Bear Country, Bear Country’s
       finances, capital expenditures, and dividends.

       Michael Zeeb: Zeeb is a CPA who testified about Bear Country’s total
       valuation. The media and public were excluded from hearing all of Zeeb’s
       testimony. Zeeb testified about his background, his valuation methodology,
       and his opinion on Bear Country’s total value.

       Joe Lux: Lux testified about attorneys’ fees. The media and public were
       excluded from all of Lux’s testimony.

       Michael Casey: The press was permitted to hear Michael’s testimony.
       Michael testified about his background at Bear Country, Bear Country’s
       capital expenses, employee salaries, and improvements made at Bear
       Country.

       At the beginning of the final day of trial, plaintiff’s attorney made an offer of
       proof on Pauline Casey’s financial records. Plaintiff’s attorney then asked
                                                                      (continued . . .)


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#25631

[¶28.]         In addition to citing SDCL ch. 15-15A and SDCL ch. 37-29 as

justification for closing the trial, Judge Delaney stated:

               It seems that the analysis in terms of benefit to the public and
               detriment to the parties is both simple and heavily one-sided.
               Beyond the fact that there will likely be a realignment of the
               family holdings in Bear Country, disclosure and publication of
               the financial records for most the past decade, the analysis of
               income, expenses, past and future projects, the costs associated
               therewith and the expected return on investments will have
               little or no impact whatsoever on the public save, perhaps,
               casual conversation and the curiosity. It will certainly sell
               papers, but it has little value as news. On the other hand the
               actual and potential harm to the interests of the existing
               shareholders, and those who may remain, is significant and
               results in an invasion of privacy in affairs never intended nor
               expected to become the subject of headlines, videos, news
               commentators and street gossip. In addition to being an
               invasion of privacy the publication of the data referenced above
               carries an unnecessary risk of irreparable damage to the parties
               and the business.

Most of Judge Delaney’s pronouncement, however, is not supported by specific

findings. He speaks generally of “potential harm” and “unnecessary risk of

irreparable damage to the parties and business.” But without specific findings,

meaningful review is illusive.

[¶29.]         Because Judge Delaney erroneously applied the First Amendment’s

presumption of openness, did not require the parties to show that closure was

necessary to preserve higher values, did not articulate specific findings permitting

meaningful review, and did not narrowly tailor the closure order, we conclude that

______________________
(. . . continued)
         that the press be removed from the courtroom. Judge Delaney agreed and
         the press was removed during the offer of proof.

         In sum, a review of the trial transcripts indicates that nearly 90% of all trial
         proceedings were closed.

                                            -19-
#25631

he abused his discretion in closing the trial proceedings from the media and public.

Accordingly, we agree with the Media that a permanent writ of prohibition be

issued, effectively rescinding Judge Delaney’s order preventing the Media and

public from attending Bear Country’s trial proceedings.

Judge Delaney’s Gag Order

[¶30.]       The Media also challenges Judge Delaney’s participant gag order.

Judge Delaney issued a gag order preventing the parties to the Bear Country

litigation from discussing “privileged and financial information” and “the trial

proceedings in whole.”

[¶31.]       Although Judge Delaney imposed the gag order to protect “privileged

and financial information,” in his response brief, he does not detail any basis for

imposing a gag order to protect those interests other than “an inherent power, as

well as a duty, to conduct a fair and orderly trial [and] . . . [that] the court has the

authority to issue such proper orders as may be necessary from time to time.” This

inherent power, however, has only been discussed in criminal cases in South

Dakota. See State v. Means, 268 N.W.2d 802, 808 (S.D. 1978) (involving a trial

court’s order to “requir[e] spectators to stand as [the judge] entered the courtroom”

in an apparent attempt to “maintain orderly proceedings”). Gag orders in criminal

cases are usually designed to protect a defendant’s right to a fair trial by an

impartial jury. See Miller, 2000 S.D. 63, 610 N.W.2d 76. The Casey family’s

dispute over Bear Country’s value was a civil case tried to the court, not a jury.

Therefore it is unclear how prohibiting the trial participants from discussing the

case with others would affect Judge Delaney’s ability to “conduct a fair and orderly


                                           -20-
#25631

[civil bench] trial.” Even though Judge Delaney had the unquestioned authority to

ensure a “fair and orderly trial,” that standard has no application here. See id. ¶

12.

[¶32.]       We are not persuaded that Judge Delaney had statutory or legal

authority to issue the gag order under the facts and circumstances of this case.

Accordingly, we agree with the Media that a permanent writ of prohibition be

issued, effectively rescinding Judge Delaney’s order preventing the parties from

discussing the case outside of court.

[¶33.]       The Media’s request for a permanent writ of prohibition is granted.

[¶34.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.

[¶35.]       WILBUR, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.




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