Because I was traveling, I wasn’t able to attend the Monday teleconference of the Marsy’s Law task force assembled by state Attorney General Marty Jackley. He issued a news release and an official attorney general opinion on Monday evening that said the victim-rights constitutional amendment doesn’t block the release of traffic-accident reports to the public, nor does it block the release of street address information where crimes occurred, nor does it block the release of names of victims in crime report logs and law enforcement radio traffic. The biggest value of his official opinion is to law enforcement and emergency response agencies and their personnel; they now will have official qualified immunity from lawsuit or trial if a victim alleges there was improper release of those types of information.
Jackley said in his official opinion, and cited past U.S. Supreme Court decisions as his basis: “It is generally accepted that good faith reliance on an Attorney General Opinion entitles a person to qualified immunity.” Jackley further notes elsewhere in his official opinion that a legislature or a court can later overrule the finding of the opinion, but the immunity remains in effect for those who acted in the meantime under the attorney general opinion. This threat of lawsuit was a reason that city and county attorneys advised against any release of information or at most limited release, State government agencies such as the Department of Public Safety likewise stopped releasing information in the weeks since South Dakota voters approved the Marsy’s Law constitutional amendment in the Nov. 8 elections.
After several weeks of news stories about law enforcement agencies cutting off or reducing information, the task force was assembled by the attorney general in the second half of last week. Its first meeting came Friday, by teleconference, without Jackley participating. He was returning from a national association of attorneys general meeting in Florida.
One hiccup in all of this remains that Jason Glodt, who officially is now the treasurer for Marty Jackley’s 2018 campaign committee, managed the Marsy’s Law campaign in South Dakota. Glodt maintained in recent weeks that Marsy’s Law required a victim to opt-in to receive the protections that are now granted by Marsy’s Law. One of those protections set in Section 5 states: “The right to prevent the 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.” In the concluding sentences of the amendment, after it lists the 19 sections of rights, is the phrase “upon request of the victim.” That is the basis for the opt-in argument.
In his pre-election “pro” statement for voters about why voting for Amendment S would be good, Glodt said: “Marsy’s Law will also give victims the right to privacy and the right to refuse unreasonable requests for discovery or the release of personal information.” Glodt issued a statement to news media on Monday night, a few hours after the attorney general issued the official opinion, saying the Marsy’s Law supporters were “extremely pleased” with the opinion and the position of the task force.
The task force has considerable work still ahead of it. Jackley notes in his official opinion that the rights apply both to the primary victim and to ancillary victims such as spouse, parent, child, sibling, grandchild, guardian or any person with “a substantially similar relationship to a primary crime victim.” He also says the amendment is “ambiguous” as to the identification, duties and responsibilities toward victims or potential victims requiring constitutional interpretation.
Three subcommittees formed Monday, according to Aberdeen American News reporter Kathy Jensen’s story. Her piece contains some further insights. It’s at http://bit.ly/2ggGZZq.
Here are links to the official attorney general opinion and the news release from the attorney general.