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.