Last month, Attorney General Marty Jackley acceded to public pressure and promised to allow two reporters to review documents from his investigation of the suspicious Ocotber 20 death of former economic development commissioner Richard Benda. Jackley conditioned that review on permission from a member of Benda's immediate family.
Among varying definitions of "immediate family" in state law, AG Jackley chose SDCL 22-1-2, which defines "immediate family" as "spouse, child, parent, or guardian of the victim." That's an odd choice of definition, since, lying under the "Crimes" title, it presumes that the person under consideration was the victim of a crime. AG Jackley declared that Benda's death was a suicide, not a crime.
According to Bob Mercer, who filed the original open-records request that elicited AG Jackley's conditional promise, Cathy Benda, who divorced Mr. Benda in 2006, has refused to grant Jackley permission to open the investigation records, has demanded to be notified if any other family member tries to grant permission, and promises to seek a court injunction against any release. Mercer says Mrs. Benda wants to protect her daughter from news reports about Mr. Benda's death.
Absent Mrs. Benda's permission, AG Jackley now says the Benda investigation documents remain secret. Mercer and his chosen media pool-mate, KELO's Ben Dunsmoor, do not get to see the documents.
Mercer is challenging Jackley's refusal. He contends that our public records laws give the Attorney General no basis for granting family members authority over open records requests. He also argues that there are no immediate family members who could grant the waiver to see the Benda investigation documents. Benda's parents are dead. He was not married at the time of his death. His only child is a minor who hadn't lived with him for seven years. Investing any family members with such waiver authority opens the prospect of an ugly family feud in court.
Mercer thus says it's time to litigate:
I will be filing an appeal, following the steps outlined in state law, to the state office of hearing examiners. This process was established by the previous attorney general, Larry Long, who is now a state circuit judge. Should either side choose to appeal the hearing examiner’s decision, the next step would be circuit court. Should either side choose to appeal the circuit judge’s decision, the final step would be the South Dakota Supreme Court [Bob Mercer, "The Richard Benda Death-Investigation Reports," Pure Pierre Politics, 2013.12.11].
Last Sunday, Jonathan Ellis of that Sioux Falls paper poo-pooed the suspicions swirling about Benda's death as the conspiratorial nonsense of "wild-eyed believers out there in the wilderness of the Internet" and perhaps "giddy" Democrats. I think it's safe to say that Bob Mercer is neither conspiratorial, wide-eyed, giddy, nor Democrat. Mercer thinks Benda's death is important enough and the AG's public statements fishy enough to delay work (he did not file a spot story for today's papers) and fight in court (or at least the Office of Hearing Examiners) to bring more facts to public attention. Mercer thinks bringing the full story to light is important enough to supersede a mother's wishes.
Mercer is right. This story matters. The public needs to know.
One must wonder if Siegel, Barnett & Schutz or Bantz, Gosch & Cremer will offer their services pro bono to Ms. Benda...
Good job Mr. Mercer!! Keep at it--you too Cory!
Cory,
Shouldn't your headline be Jackley Blocking Media Review On Behalf of Benda's Ex-Wife?
Thank you Madville Times, Mr. Mercer, and everyone else who is working to find the truth and inform the public. I told a friend of mine that this is all sounding like a John Grisham novel. Keep at it and thanks again!
If the daughter really wants it blocked, I can live with it. But I want her to publicly state it. At 16 you don't have to hide behind your mom. Make your own argument on why you don't want it heard.
Joe, I lay no demands or expectations upon the daughter. The AG should not do so, either.
Mark, that's a fair editorial question. Jackley is blocking the review with his extralegal waiver condition. But if we take the condition for what's on paper, Jackley is putting the ball in the family's court, and one family member is stating she will fight any other family member who chooses to pick up that ball.
Very unusual. There is no law enforcement need to keep it hidden from the public as they have closed the case and ruled it a suicide. There is no privacy issue as a deceased person has no privacy rights under our laws.
Not sure what the mother could possibly protect her daughter from, Mr Benda's cause and manner of death have been widely publicized.
It seems Jackley is that little girl from Peanuts who yanked the football away from Mercer right as he was about to kick it.
First, is suicide a crime in this state? In many places I believe it is considered as such. That may no longer be the case these days. I could be completely out of date on that.
Second, as a mom, I'm completely with Cathy Benda in her efforts to protect her child. If Jackley is using that as an excuse, well, too bad. Go after him, but leave the daughter alone and respect her mom's right to do what's best for her, yes, even if it leaves the public ignorant. Release the info to the Supreme Court and be done with it.
Good question on the legal status of suicide, Jessie. SDCL 22-16-37 makes it a felony to aid and abet a suicide. SDCL 22-16-40 requires law enforcement officers to report any attempted suicide to the state's attorney. But committing suicide does not appear to be a crime under South Dakota Title 22.
Is privacy/protection of the family an absolute here, or is there a balance to be struck between protecting the family and protecting the public trust in the AG's office?
Jessie,
Even if South Dakota has a law that makes suicide a crime, who do you prosecute if someone commits suicide. You can hardly prosecute and convict a corpse. Doesn't make any sense.
The daughter is relatively young, there may come a time in her life when she wants to know the circumstances of her father's death. Better to know now or later?
Mr Merceer needs to pursue this at any cost, everyday the Benda death, Northern Beef Packers and the GOED/EB-5 is an ever developing scandal, that not provided any hard answers.
The law is the law, and that's what Jackley was hired to do. If he wants to be counselor on grief issues, he can apply for licensure. But if he wants to be the Attorney General, he has a binding obligation not to obstruct public records and live up to his offer to review the file with two reporters. I'm sorry that sounds rough for a former family member, but Mr. Benda was a high profile public figure involved in a federal investigation of the Governor's Office of Economic Development.
I haven't been reading your blog as faithfully lately, so maybe this has been discussed already.
Let's dive in to the (as of now) conspiracy side of it. What if it's not suicide.
Who killed Benda and why, exactly?
Not sure how Cathy can stop this act as she went to court in 2006 to legally nullify her marriage (relative or family member) with Richard Benda?
It stretches logic that a former spouse has legal grounds to act on behalf of the deceased, or even his minor not of tender years when he had no custody. Any "victim" here is apparently the people of South Dakota. All the principles in the EB-5 snafu were public entities or held themselves out in the public so are afforded far less deference and privacy than a common private citizen. The Kennedy family couldn't / wouldn't muffle the investigation and disclosure of its tragedies - and they had intact marriages when tragedy struck. Even the pink mist Zapruder film had extensive incamera viewings and subsequent reporting. The apparent sliding scale of open government from the AG's office is as inexcusable as the tag line: 'you can keep your plan if you like it'.
It's long past the time to run government by the mantra of: "trust, but verify."