Rapid City Journal v. Callahan

#29811, #29812-PJD
2022 S.D. 38

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

RAPID CITY JOURNAL, Applicant,

v.

THE HONORABLE CHAD R. CALLAHAN,
South Dakota Fourth Judicial Circuit
Magistrate Judge, Respondent.

****

ORIGINAL PROCEEDING

****

JON E. ARNESON
Sioux Falls, South Dakota Attorney for applicant.

JASON R. RAVNSBORG
Attorney General

PAUL S. SWEDLUND
Solicitor General
Pierre, South Dakota Attorneys for respondent.

****

CONSIDERED ON BRIEFS
JANUARY 10, 2022
OPINION FILED 06/22/22
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DEVANEY, Justice

[¶1.] This matter concerns the Rapid City Journal’s (Journal) applications

for alternative writs of prohibition and mandamus and corresponding applications

for permission to commence original prohibition and mandamus proceedings

against the Honorable Chad Callahan, magistrate judge. The Journal alleges that

its right to access Gary Cammack’s criminal court file was violated when Judge

Callahan entered an order sealing Cammack’s court file prior to the expiration of

the condition that he obey all laws for six months. The Journal further asserts that

Judge Callahan could not enter an order that had the effect of suspending

imposition of sentence without a probation condition. After reviewing the Journal’s

applications, we directed the Journal to address on what basis it has standing to

apply for its requested relief and directed Judge Callahan to detail the procedural

history of the matter and identify the authority upon which the court sealed

Cammack’s court file.

[¶2.] Having now reviewed the parties’ submissions, we conclude that while

the Journal does not have standing to challenge the sentence imposed by the

magistrate court, it does have standing to challenge the magistrate court’s seal

order. We therefore examine the merits of the Journal’s claim that the magistrate

court violated its right to access Cammack’s court file.

Factual and Procedural Background

[¶3.] In response to this Court’s directive, Judge Callahan has provided the

following procedural history. On January 18, 2020, Cammack was arrested for and

charged with speeding and first offense driving while under the influence in Meade

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County. Because of a conflict of interest, the Pennington County State’s Attorney’s

Office prosecuted the action. Cammack initially pled not guilty, and thereafter,

multiple status hearings were held. Although a jury trial was scheduled, the State

and Cammack entered into a plea agreement after a pre-trial conference on June

10, 2021. The agreement provided that Cammack would plead guilty to careless

driving and speeding, pay fines and costs, and not violate any laws for a period of

six months. The agreement also contemplated that Cammack would request a

suspended imposition of sentence. At a change of plea hearing on June 29, 2021,

Judge Callahan accepted Cammack’s guilty plea and granted a suspended

imposition of sentence on the conditions that Cammack pay fines and costs and not

violate any laws for six months. All of these proceedings were open to the public,

and the court filings were likewise accessible to the public during the several

months while these proceedings were occurring.

[¶4.] On October 1, 2021, Cammack’s attorney sent an email to the Meade

County Clerk of Courts noting that Cammack’s criminal case was still designated as

a “pending” case and asking what steps needed to be taken to have the case sealed.

Cammack’s attorney explained in the email that he thought the judge had ordered

an immediate seal of the court file when granting the suspended imposition of

sentence. The clerk replied that the notes from the court proceeding did not show

that Judge Callahan ordered an immediate seal. The clerk further explained that

Odyssey (South Dakota’s electronic filing system) showed the seal date would be

December 29, 2021.

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[¶5.] Counsel for Cammack then sent an email to the prosecutor asking

whether he would object to a modification of the court’s order suspending the

imposition of sentence so that the case could be immediately sealed. The prosecutor

did not object, and counsel for Cammack sent an email to Judge Callahan and the

prosecutor, and copied the clerk of courts, asking whether the court would be willing

to grant an immediate seal. After receiving Cammack’s request, the clerk advised

that no “Judgment” had been filed in the case. Judge Callahan responded that he

would grant the request for an immediate seal, assuming the fines and costs had

been paid. The prosecutor then indicated he would “follow up on the judgment.” 1

Judge Callahan thereafter signed and filed an order on October 4, 2021, sealing the

court file. The seal order identified that Cammack had “observed all the conditions

imposed by the [c]ourt.” On this same date, presumably to rectify the fact noted by

the clerk of court that a written order suspending the imposition of sentence had

not been entered, Judge Callahan also entered a written order suspending the

imposition of Cammack’s sentence. However, this October 4, 2021 order contained

the same condition initially ordered by the court that Cammack “obey all laws for

six (6) months.”

1. The clerk of court, the prosecutor, and Judge Callahan (and his counsel in
this writ proceeding) all mistakenly referred to the document containing the
court’s order suspending the imposition of sentence as a “judgment.” The
document is also improperly titled as a “judgment” and uses language that
improperly lists terms of a “sentence” that are instead “conditions” of the
suspended imposition of a sentence. See SDCL ch. 23A Appendix of Forms
(providing an example in Form 24 of an order suspending imposition of
sentence). Under the express terms of SDCL 23A-27-12.2, a court suspending
the imposition of sentence does not enter a judgment of guilt. Thus, in this
opinion, we refer to any document improperly titled as a “judgment” by its
proper designation—an order suspending the imposition of sentence.

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[¶6.] In early October 2021, the Journal became aware of Cammack’s

criminal case and secured copies of the documents relating to the case that had

been filed in Odyssey before the seal order took effect. The dispositional notes in

the Odyssey file showed that the court’s suspended imposition of sentence contained

two conditions: 1) that Cammack pay the fines and costs on the date of his plea and

sentencing hearing (June 29, 2021); and 2) that Cammack violate no laws for a

period of six months. This information caused the Journal to question why the

magistrate court’s sealing of the court file occurred prior to the expiration of the six-

month period. On October 15, the Journal sent an email to the prosecutor and

Cammack’s defense counsel requesting information regarding the court’s authority

to prematurely seal the file. Cammack’s attorney explained that Judge Callahan

had amended the order suspending the imposition of sentence to remove the obey

all laws provision. 2

[¶7.] According to the Journal’s statement of facts in its verified applications

for alternative writs of mandamus or prohibition, the Journal received, upon

request, further documentation from Cammack’s counsel. The Journal received

Judge Callahan’s order sealing the court file entered on October 4, 2021, a copy of

2. Although Cammack’s attorney further advised the Journal that, in his view,
the intent of the plea agreement was that the case would be sealed at the
time of sentencing, in the email exchange referenced above among counsel
and the clerk of courts, Cammack’s counsel acknowledged that this intention
may not have been made known at the plea and sentencing hearing, at which
another attorney appeared with Cammack. The procedural history
submitted by Judge Callahan provides that the plea agreement presented to
the court included an obey all laws for six months provision. Such a condition
is consistent with the oral order the court entered at the hearing, as reflected
in the dispositional notes recorded in Odyssey.

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the arrest document, and a copy of the emails exchanged among counsel and Judge

Callahan that led to the order sealing the court file. However, the Journal asserted

in its verified applications that its “questions regarding the existence of [the seal]

order” have “gone unanswered” by Judge Callahan and the prosecution. 3

[¶8.] On November 1, 2021, the Journal requested, in its application for an

alternative writ of prohibition and for permission to commence an original

prohibition proceeding against Judge Callahan, that this Court enter a writ of

prohibition barring the magistrate court from entering or enforcing the order

granting Cammack a suspended imposition of sentence without a probation

condition and prohibiting the court from enforcing the corresponding seal order.

The Journal similarly requested in its application for an alternative writ of

mandamus and permission to commence an original mandamus proceeding that

this Court direct the magistrate court to unseal Cammack’s court file and rescind

any order to the contrary and to rescind any order that removes the probation

condition.

[¶9.] After reviewing these applications, this Court issued an order on

November 22, 2021, directing the Journal to address “the grounds for its standing to

request either a writ of prohibition barring Respondent from granting a suspended

imposition of sentence without requiring a term of probation, or a writ of prohibition

3. In the procedural history related to this Court by Judge Callahan, he
indicated that after consultation with his presiding judge, he did not respond
to the Journal’s request because the case had been sealed. The Journal has
indicated in its response to Judge Callahan’s procedural history that
although Judge Callahan has referred to signing both the suspended
imposition of sentence and the order to seal on October 4, the Journal has
only been provided a copy of the seal order.

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prohibiting [Judge Callahan] from enforcing its order to seal [Cammack’s] court

file.” 4 We further directed Judge Callahan “to submit a response detailing the

procedural history of the proceedings and his authority to seal [Cammack’s] court

file prior to the expiration of the timeframe set forth in any dispositional order, or

final order filed by [the court].” Also, Judge Callahan was directed to “state

whether any term of probation remains in effect under the terms of any

dispositional order, or final order filed by [the court].” The parties have submitted

their responses, and we now address the following issues:

1. Whether the Journal has standing to request either a writ
of prohibition preventing the magistrate court from
granting or enforcing an order suspending imposition of
sentence that does not contain a term of probation as a
condition or a writ of mandamus directing the rescission
of any such order.

2. Whether the Journal has standing to request either a writ
of prohibition preventing the magistrate court from
enforcing its order sealing Cammack’s court file or a writ
of mandamus directing that the court rescind such order
and unseal the court file.

3. Whether the magistrate court had authority to seal
Cammack’s court file prior to the expiration of the
timeframe set forth in the governing dispositional order.

4. This Court’s directive for further briefing referred only to the Journal’s
standing to seek a writ of prohibition (the counterpart of a writ of
mandamus). See SDCL 21-30-1. On further review, it appears that the
Journal’s applications for writs of prohibition and mandamus overlap in the
context of the relief being sought with respect to both the court’s sentencing
order and its order sealing the court file.

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Analysis and Decision

[¶10.] “Under Article V, § 5 of the South Dakota Constitution, this [C]ourt

has authority to issue, hear and determine any original or remedial writs.” Dacy v.

Gors, 471 N.W.2d 576, 578 (S.D. 1991). “[A]n applicant for a writ of prohibition

must show that he or she has no ‘plain, speedy and adequate remedy in the

ordinary course of law’ available to them.” Cummings v. Mickelson, 495 N.W.2d

493, 495 (S.D. 1993) (quoting SDCL 21-30-2). Further, “[t]o prevail on a writ of

mandamus or prohibition, [p]etitioners must show ‘a clear legal right to

performance of the specific duty sought to be compelled and the [respondent] must

have a definite legal obligation to perform that duty.’” Cheyenne River Sioux Tribe

v. Davis, 2012 S.D. 69, ¶ 13, 822 N.W.2d 62, 66 (citation omitted).

1. Whether the Journal has standing to request either
a writ of prohibition preventing the magistrate
court from granting or enforcing an order
suspending imposition of sentence that does not
contain a term of probation as a condition or a writ
of mandamus directing the rescission of any such
order.

[¶11.] In its application for an alternative writ and permission to commence

an original prohibition action, the Journal asserts that the magistrate court had no

authority to grant a suspended imposition of sentence without a probation

condition. In its view, “probation is a necessary and essential component of any

suspended imposition of sentence” because SDCL 23A-27-12.2 provides that the

court may “suspend the imposition of sentence and place the defendant on probation

for such period and upon such terms and conditions as the court may deem best.”

(Emphasis added.) In response to this Court’s directive that the Journal address its

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standing to assert such a challenge, the Journal argues that it has standing because

the news media and the public have an “interest in the proper administration of

justice” and “an inherent right to have its republic government . . . function as the

law requires it to function.” Judge Callahan contends that the Journal is a third

party with no standing to challenge the sentence he imposed or the conditions of

that sentence, and he further argues that the term “may” as used in SDCL 23A-27-

12.2 vests a sentencing court with broad discretion as to whether, or under what

terms and conditions, a defendant is placed on probation.

[¶12.] A writ of prohibition “arrests the proceedings, administrative or

judicial, of any tribunal, corporation, board, or person, when such proceedings are

without or in excess of the jurisdiction of such tribunal, corporation, board, or

person, or are without or in excess of the powers of authority conferred by law upon

such tribunal, corporation, board, or person.” SDCL 21-30-1. A “person beneficially

interested” may seek a writ of prohibition. SDCL 21-30-3. This Court has not

explained what is meant by the phrase “beneficially interested”; however, it is clear

that the Journal is not a person beneficially interested in the sentence a court

imposes as a result of a defendant’s criminal conduct.

[¶13.] In fact, the Journal appears to concede that it does not have an

interest in the resolution of the underlying criminal matter. It acknowledges that it

“does not allege standing to insinuate itself into a criminal case to interfere with the

administration of justice, per se.” Rather, in the Journal’s view, its “standing

derives directly from the press and public’s right to assert and protect lawfully

endowed rights of access to public records.” (Emphasis added.)

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[¶14.] Whether the Journal has standing to seek a right of access to

Cammack’s court file implicates an entirely different inquiry than whether the

Journal has standing to challenge a sentence, or a suspension or modification

thereof, that a defendant receives. In regard to a citizen’s standing under Article III

of the United States Constitution to challenge a defendant’s criminal sentence,

federal courts have concluded that no such standing exists because “a non-party

lacks a judicially cognizable interest in a criminal defendant’s sentence[.]” United

States v. Stoerr, 695 F.3d 271, 277 (3d Cir. 2012) (cleaned up) (citation omitted); see

also Whitmore v. Arkansas, 495 U.S. 149, 156, 110 S. Ct. 1717, 1723, 109 L. Ed. 2d

135 (1990). The Massachusetts Supreme Court has similarly concluded on state

law grounds that a crime victim could not challenge the conditions of probation

imposed on a defendant because the victim does not have a “judicially cognizable

interest in the proceeding and lacks standing to challenge the sentence.” H.T. v.

Commonwealth, 989 N.E.2d 424, 425 (Mass. 2013). 5 Because the Journal is not a

person beneficially interested in Cammack’s criminal proceeding, it does not have

standing to request writs of prohibition or mandamus challenging the magistrate

court’s sentencing decision. 6

5. While Article VI, § 29 of the South Dakota Constitution provides certain
rights to crime victims, including the right to provide input to the court in
sentencing proceedings and to be informed of the sentence, disposition,
incarceration, or release of the defendant, it does not provide victims a right
to challenge the sentence imposed.

6. Although it is unnecessary to address the merits of the Journal’s argument
given its lack of standing, we note that the Journal’s argument relating to a
sentencing court’s ability to grant a suspended imposition of sentence without
requiring a condition of probation is misplaced. Here, the court did in fact
(continued . . .)
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2. Whether the Journal has standing to request either
a writ of prohibition preventing the magistrate
court from enforcing its order sealing Cammack’s
court file or a writ of mandamus directing that the
court rescind such order and unseal the court file.

[¶15.] As to the magistrate court’s order sealing Cammack’s court file, the

Journal claims that it has standing to challenge such order and obtain relief in the

form of a writ of prohibition or a writ of mandamus because this Court has

previously recognized that the media has a right of access to court proceedings and

thus standing to request such writs. Judge Callahan does not appear to dispute

that the Journal has standing to request writs of prohibition or mandamus related

to whether the October 4, 2021 seal order violated the Journal’s right of access.

[¶16.] In Sioux Falls Argus Leader v. Miller, we examined whether the Argus

Leader, “a nonparty to the underlying lawsuit, has standing to challenge the gag

order[,]” see 2000 S.D. 63, ¶ 6, 610 N.W.2d 76, 80, that barred “certain conduct [the

court] believed would inhibit both the State’s and the defendants’ rights to fair and

impartial proceedings that may eventuate in a trial[,]” see id. ¶ 3. We noted that

“[t]he United States Supreme Court has previously determined that the First

Amendment protects the right to receive information and ideas.” Id. ¶ 7. We also

recognized that “[o]ther courts have held that news agencies have standing to

challenge court orders in an effort to obtain information or access to judicial

proceedings, though the agencies are neither parties to the litigation nor directly

restrained by those orders.” Id. ¶ 8. In light of this authority, the Court concluded

________________________
(. . . continued)
impose a condition that resulted in a probationary period during which
Cammack was directed not to violate any laws for a period of six months.

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that the Argus Leader had standing to challenge the validity of the gag order

“because the order, though not directed at [the Argus Leader], restricts some of the

sources to which it may turn or has turned for information about the underlying

criminal action” and that if a violation of the Argus Leader’s right to receive

information and ideas exists, “the injury falls within the zone of interests protected

by the First Amendment.” Id.

[¶17.] So too here, the Journal has a right to obtain and access criminal court

files, and if Judge Callahan sealed Cammack’s court file when a condition of his

suspended sentence had not yet been satisfied, the court’s order necessarily violated

the Journal’s right to access. Therefore, the Journal has standing to challenge the

validity of Judge Callahan’s October 4, 2021 seal order. The Journal has also made

the necessary showing to seek a writ from this Court because the Journal’s request

to the magistrate court for access to Cammack’s court file was denied, and the

Journal has no other plain, speedy, or adequate remedy in the ordinary course of

law in the event the magistrate court’s seal order violated the Journal’s right to

access. See Miller, 2000 S.D. 63, ¶ 5, 610 N.W.2d at 80.

3. Whether the magistrate court had authority to seal
Cammack’s court file prior to the expiration of the
timeframe set forth in the governing dispositional
order.

[¶18.] Judge Callahan contends that he had the authority to enter the order

sealing Cammack’s court file on October 4, 2021, because Cammack was not on

probation on that date, or on any date prior. He further asserts that the condition

that Cammack obey all laws for six months is not probation, but rather a “condition

of sentence.” In response, the Journal claims there is no distinction between a

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“condition of sentence” and “probation” as Judge Callahan uses the terms because

regardless of whether Judge Callahan placed Cammack on formal supervised

probation or imposed a condition for the suspended imposition of sentence, SDCL

23A-27-14 requires that Cammack complete “all conditions” before Judge Callahan

could discharge and seal the matter.

[¶19.] The question whether Judge Callahan had the authority to enter the

October 4, 2021 seal order is resolved by the statutes governing the ability of a

criminal defendant to obtain a suspended imposition of sentence. SDCL 23A-27-

12.2 provides that the court “may, without entering a judgment of guilt, and with

the consent of the defendant, suspend the imposition of sentence and place the

defendant on probation for such period and upon such terms and conditions as the

court may deem best.” Only when a defendant has completed “all conditions

imposed pursuant to § 23A-27-12.2[,]” see SDCL 23A-27-14, may the court discharge

the defendant and seal the file in accord with SDCL 23A-27-17.

[¶20.] Here, Judge Callahan suspended the imposition of Cammack’s

sentence on the condition that he pay all fines and costs and obey all laws for six

months. Thus, contrary to Judge Callahan’s view, the court did in fact impose a

suspended imposition of sentence that included a probationary period wherein

certain conditions must be met. See SDCL 23A-27-18.3 (setting forth various

conditions of probation that may be imposed, including the two imposed by the court

here). Nothing in SDCL chapter 23A-27 restricts the term “probation” to a scenario

involving only formal supervision by a court services officer. See, e.g., SDCL 23A-

27-12.1 (providing certain requirements when a court places a defendant “on

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probation to the court services department” (emphasis added)); SDCL 23A-27-14

(amended in 2020 to account for both felony and misdemeanor discharges wherein

either a court services officer assigned to the case or a defendant, who is not on

supervised probation, may bring to the attention of the court that the conditions

imposed on the suspended imposition of sentence have been satisfied). Thus, the

word “probation” in SDCL 23A-27-12.2 can include a period in which a defendant,

who is not under the formal supervision of the court services department, must

nevertheless comply with the conditions the court imposes.

[¶21.] Importantly, however, even though Judge Callahan originally imposed

a condition that Cammack obey all laws for six months, he retained the authority

under SDCL 23A-27-20.1 to modify the terms of Cammack’s suspended sentence by

shortening or terminating the probation period previously imposed. Therefore,

when presented with such a request from Cammack and the prosecutor, Judge

Callahan had the discretion to terminate the previously imposed condition, find

Cammack had satisfied the remaining conditions required by the court, and seal the

court file. 7

[¶22.] The problem here is that Judge Callahan did not—on October 4,

2021—enter an order terminating the previously imposed condition. As explained

in Judge Callahan’s response to this Court’s directive, on the same day he entered

7. Chief Justice’s dissent on this issue incorrectly states that this opinion
concludes that the magistrate court was without authority to enter the
October 4 seal order. See infra ¶ 41. As explained above, although the court
had the authority to seal the criminal file if the conditions of the suspended
imposition had been satisfied, here, the governing order entered by the court
suspending the imposition of sentence contained an express condition that
had not yet been satisfied at the time the court entered the seal order.

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the order sealing Cammack’s court file, he also entered a written order

memorializing his suspension of the imposition of Cammack’s sentence, effective

June 29, 2021, which included the condition that Cammack obey all laws for six

months. Such period would not expire until December 29, 2021. Thus, the court’s

finding in its October 4 seal order that Cammack had observed all the conditions

imposed by the court was erroneous because on that date, Cammack could not have

satisfied the conditions set forth in the corresponding order suspending the

imposition of his sentence.

[¶23.] However, the error did not occur because of an improper exercise of

discretion. As Judge Callahan has explained in his response to this Court, it was

his intention “to lift” this condition on October 4, 2021, but the October 4 order

suspending the imposition of sentence prepared for his signature inadvertently

retained the initially imposed condition that Cammack obey all laws for six months.

Judge Callahan has further advised that he conferred “with the lawyers” and has

now remedied this “clerical error” by issuing an amended order on December 15,

2021, removing the condition that Cammack not violate any laws.

[¶24.] South Dakota’s rules of criminal procedure allow for such corrections.

“Clerical mistakes in judgments, orders or other parts of a record and errors in a

record arising from oversight or omission may be corrected by a court at any time

and after such notice, if any, as the court orders.” SDCL 23A-31-2 (emphasis

added). For example, in Lykken v. Class, the circuit court had orally pronounced its

sentence and then realized within minutes that it failed to state whether the

sentences on two counts were to run concurrently or consecutively. 1997 S.D. 29, ¶¶

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8–9, 561 N.W.2d 302, 305. After the court recognized its mistake, it reconvened

with the parties and their attorneys and corrected the sentence to provide,

consistent with the court’s written notes, that the sentences were to run

consecutively. Id. ¶ 9.

[¶25.] On habeas, the defendant asserted that the circuit court unlawfully

enlarged his sentence. This Court disagreed, concluding that the circuit court

corrected an inadvertent omission from its intended sentence. Id. ¶ 10. We noted

SDCL 23A-31-2 is identical to the federal rule of criminal procedure and that

federal courts have explained the purpose of the rule is “not to allow reassessment

of the merits of an earlier decision” but to allow correction of errors that occur in

transcription of judgments or orders. Id. ¶ 11, 561 N.W.2d at 306 (citations

omitted). We further noted that the court’s written notes reflected that a

consecutive sentence was intended and that the court had merely omitted relaying

that portion of the notes when it orally pronounced the sentence. Id. ¶ 10. Because

an “[e]xamination of the entire record readily demonstrates the sentencing court

intended these sentences to run consecutively[,]” see id. ¶ 13, the Court upheld the

circuit court’s correction, see id. ¶ 18, 561 N.W.2d at 307. See also State v. Whalen,

367 N.W.2d 186, 187 (S.D. 1985) (upholding the circuit court’s order entered six

months later as “a valid correction of an oversight or omission as authorized by

SDCL 23A-31-2”).

[¶26.] After reviewing Judge Callahan’s submission to this Court and the

documented email exchange between counsel and the court appended to the

Journal’s applications, it is apparent that Judge Callahan intended to remove the

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obey all laws provision on October 4, 2021, but mistakenly signed an order (wrongly

titled as a judgment) prepared for his signature that retained the condition that

Cammack obey all laws for six months. Thus, Judge Callahan acted within his

authority under SDCL 23A-31-2 when he issued a corrective order on December 15,

2021, that removed the condition at issue consistent with what he stated he would

do in his October email exchange with counsel.

[¶27.] However, Judge Callahan’s authority to correct this error does not

resolve the question whether the Journal had a right to access Cammack’s court file

up to the time the amended order was entered. The Journal argues that because

the condition of Cammack’s suspended imposition of sentence requiring him to obey

all laws for six months had not been fulfilled on October 4, 2021, Judge Callahan

acted in excess of his authority and violated the Journal’s legally protected right of

access to judicial records when he entered an order sealing the court file effective on

that date. In response, Judge Callahan asserts that the Journal does not have a

right of access to Cammack’s file because he has now corrected his error by issuing

the December 15, 2021 amended order, which was signed nunc pro tunc October 4,

2021.

[¶28.] It is well settled that a “‘[n]unc pro tunc’ judgment is a judgment

entered to make the record speak the truth and the function of such entry is to

correct the judicial records insofar as they fail to record a judgment by the court[.]”

Andersen v. Andersen, 2019 S.D. 7, ¶ 11, 922 N.W.2d 801, 803 (quoting In re B.A.R.,

344 N.W.2d 90, 94 (S.D. 1984) (Henderson, J., concurring in part and dissenting in

part)). “‘Nunc pro tunc’ means ‘now for then’ and when applied to entry of a legal

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order or judgment, it normally refers, not to a new or de novo decision, but to the

judicial act previously taken, concerning which the record is absent or defective, and

the later record-making act constitutes but later evidence of the earlier effectual

act.” Id.

[¶29.] As Chief Justice Jensen explains in his dissent on this issue, a nunc

pro tunc designation has been used by other courts in orders correcting sentencing

errors. See infra ¶ 42 (citing cases). However, neither the cases cited by Chief

Justice Jensen nor this Court’s past decisions address the more pertinent question

at issue here—whether an amended order should be given nunc pro tunc effect

when it prejudices a third party’s right. 8 A review of cases from other courts

reveals that there are exceptions to the general premise that a nunc pro tunc order

is deemed effective back to the date of the original order in scenarios when the

relation back would impact the rights of a party or of a third party.

[¶30.] For example, the Supreme Court of Appeals of West Virginia declined

to give retroactive effect to an amended order entered nunc pro tunc because doing

so would have cut off the defendant’s right to appeal. Dement v. Pszczolkowski, 859

S.E.2d 732, 741 n.12 (W. Va. 2021); see also Baker v. Gaskins, 24 S.E.2d 277, 278

(W. Va. 1943) (refusing “to give a retrospective effect to this judgment order which

8. Contrary to Chief Justice Jensen’s contention, see infra ¶ 41 n.11, the Journal
relied on the existence of a condition of Cammack’s sentence that had not yet
been satisfied (a condition set forth in the dispositional notes in Odyssey and
later reflected in the court’s October 4 order suspending the imposition of
sentence) when it asserted its right to access Cammack’s court file. The
attempt to make the correction of this clerical error retroactive via a nunc pro
tunc order did, therefore, impact the Journal’s right to access this
information.

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would result in cutting off the plaintiff's time for applying for a writ of error”). The

Colorado Court of Appeals also declined to give operational effect to a nunc pro tunc

judgment as against an innocent entity who had acquired property rights after the

entry of the original judgment and before the amended judgment. Goodman Assoc.,

LLC v. Winter Quarters, LLC, 292 P.3d 1060, 1064–65 (Colo. App. 2012).

[¶31.] While both Dement and Goodman are distinguishable factually and

procedurally from the circumstances here, multiple secondary sources likewise

support that a judgment or order entered nunc pro tunc should not be applied as

though it was entered on the date of the original judgment or order when the rights

of third parties are affected. As one secondary source explained, “[e]xcept as to the

rights of third persons, a valid judgment entered nunc pro tunc is retrospective and

has the same force and effect as though it had been entered at the time when the

judgment was originally rendered.” 49 C.J.S. Judgements § 162 (May 2022)

(emphasis added); see also 56 Am. Jur. 2d Motions, Rules, and Orders § 62

(providing that “a court’s inherent power to correct clerical errors through nunc pro

tunc treatment may not be wielded when third parties have substantive rights in

play that may be altered by recording a fact as of a prior date, when it did not exist

then” (emphasis added)).

[¶32.] Here, it is undisputed that in October 2021 the Journal had the right

to access Cammack’s court file because, at that time, Cammack still had an

unsatisfied condition of his suspended sentence as reflected in the governing order

signed and filed by the court. See Miller, 2000 S.D. 63, ¶ 5, 610 N.W.2d at 80.

Moreover, when Judge Callahan became aware of the error during the course of the

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current writ proceedings and issued his amended order, nunc pro tunc October 4,

2021, the Journal’s writ applications—seeking to challenge the very authority of the

court to seal the record on this date—were still pending. As such, although Judge

Callahan clearly acted within his discretion in issuing an amended order on

December 15, 2021, to correct his prior oversight, we decline to give the order nunc

pro tunc effect. Under the circumstances here, to do so would impact a third party’s

substantial right, i.e., the Journal’s right to access Cammack’s court file when it

made such a request in October 2021. We therefore conclude that the Journal is

entitled to access the court file that existed up to the date of Judge Callahan’s

amended order suspending the imposition of Cammack’s sentence that has now

made the corresponding seal order lawful under SDCL 23A-27-14 and SDCL 23A-

27-17.

[¶33.] Although we have determined that the Journal is entitled to access

these additional court records, there is nothing in the record to support the

Journal’s suggestion that some form of “government secrecy” was at play here.

Cammack’s court file was accessible to the public from the time it was opened in

January 2020 until October 4, 2021. Each hearing during this timeframe was open

to the public, including Cammack’s plea hearing during which Cammack received

the suspended imposition of sentence and the court imposed its conditions.

Moreover, while Judge Callahan denied the Journal access in October 2021 to the

file after he entered what he believed to be a lawful seal order, Cammack’s counsel,

in response to the Journal’s inquiries, provided the Journal with Cammack’s arrest

documents and the emails between the court and both counsel that led to the court

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sealing the file. Were it not for the fact that the October 4, 2021 order suspending

imposition of sentence mistakenly included the obey all laws condition, Judge

Callahan’s seal order would have been proper and the Journal’s argument and

request for relief would have lacked merit.

[¶34.] However, for the reasons expressed in this opinion, we grant the

Journal’s application for a writ of mandamus and direct Judge Callahan to provide

the Journal access to any documents filed up to and including the court’s amended

order suspending imposition of sentence entered on December 15, 2021. This would

include Judge Callahan’s initial order suspending imposition of sentence entered on

October 4 that retained the obey all laws condition and the court’s December 15,

2021 amended order removing this condition. A writ of mandamus will issue

following the expiration of the time for petitioning for rehearing pursuant to SDCL

15-25-3 or following the resolution of any such petition.

[¶35.] KERN and SALTER, Justices, concur.

[¶36.] JENSEN, Chief Justice, and MYREN, Justice, concur in part and

dissent in part.

JENSEN, Chief Justice (concurring in part and dissenting in part).

[¶37.] I agree with the majority opinion’s resolution of the standing issues,

but I dissent from the determination that this Court should exercise its original

jurisdiction to grant the Journal’s petition for a writ of mandamus.

[¶38.] “A writ of mandamus ‘is an extraordinary remedy that will issue only

when the duty to act is clear.’” Thompson v. Lynde, 2018 S.D. 69, ¶ 8, 918 N.W.2d

880, 883 (citation omitted). To prevail on a petition for a writ of mandamus, “the

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petitioner must have a clear legal right to performance of the specific duty sought to

be compelled and the respondent must have a definite legal obligation to perform

that duty.” Sorrels v. Queen of Peace Hosp., 1998 S.D. 12, ¶ 6, 575 N.W.2d 240, 242.

[¶39.] On this record, the Journal has failed to establish a clear legal right to

the extraordinary relief it seeks to compel Judge Callahan to unseal the file. The

Journal’s own submissions demonstrate that the parties agreed in an email

exchange on October 1 to modify the six-month probation condition and

immediately seal the file. Judge Callahan also indicated his willingness to modify

the sentence to permit the file to be immediately sealed. 9 Additionally, despite the

clerical error to the contrary in the sentencing order, Judge Callahan’s decision to

modify Cammack’s sentence to remove the six-month condition to obey all laws is

confirmed in the accompanying seal order in which Judge Callahan affirmatively

found “the defendant has observed all conditions imposed by the court” and ordered

“that all official records in this action be sealed, along with all recordation relation

to the defendant’s arrest, indictment, trial, and dismissal and discharge.”

(Emphasis added.) Finally, the court’s decision to modify the six-month condition is

demonstrated in the clerk’s note on the October 4 entry of the order to seal, stating

“(SUSPENDED IMP OF SENT/NO PROBATION).” (Emphasis added.)

9. Cammack’s counsel represented in one email that Cammack had intended to
ask for an immediate seal order at the time of the June sentencing but had
failed to do so. Cammack’s counsel then asked if the State had “[a]ny
objection to modifying the case to grant an immediate seal . . . ?” (Emphasis
added.) The State indicated that it had “no objection[.]” Judge Callahan then
responded, “I have no problem with an immediate seal assuming it was paid
(and I suspect it was).”

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[¶40.] The Journal’s theory in its petition, that Judge Callahan improperly

sealed the file on October 4, 2021, is based upon the faulty premise that the court

did not have the authority to modify the terms and conditions of Cammack’s

sentence to reduce the length of time he was required to obey all laws. SDCL 23A-

31-1 is clear that “[a] court may reduce a sentence: (1) [w]ithin two years after the

sentence is imposed[.]” 10

[¶41.] I also disagree with the majority opinion’s conclusion that the court

was without authority to enter a seal order on October 4 and that the nunc pro tunc

order was ineffectual to correct the clerical error in the October 4 sentencing

order. 11 SDCL 23A-31-2 provides that “[c]lerical mistakes in judgments, orders, or

other parts of a record and errors in a record arising from oversight or omission may

10. Further, a court has specific authority under SDCL 23A-27-20.1 to modify
any term or condition of probation and may even lengthen a probationary
period. Here, the magistrate court reduced the probation term after both
parties specifically consented to the modification of the original sentencing
order.

11. The majority opinion cites authorities and cases from other jurisdictions
holding that a nunc pro tunc order may not relate back to the date of the
original order when the substantial rights of a third party are prejudiced by
the order. See Dement, 859 S.E.2d at 741 n.12; Baker, 24 S.E.2d at 278;
Goodman Assoc., 292 P.3d at 1064. The majority opinion acknowledges these
cases are readily distinguishable from the facts of this case. More
importantly, the cases refusing to retroactively apply a nunc pro tunc order
all involved prejudice to a third party caused by reliance upon the clerical
error in the original order. Here, in contrast, the Journal was left in the
same position after the October 4 order irrespective of the error and the later
correction of that error. The Journal had no cognizable right to access the
information once Judge Callahan decided to modify Cammack’s sentence to
remove the probation condition, found Cammack had satisfied all the
conditions of the sentence, and exercised his lawful authority to seal the file.
Neither the clerical error in the October 4 sentencing order nor the later nunc
pro tunc order’s correction of the error prejudiced the Journal in any fashion.

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be corrected by a court at any time and after such notice, if any, as the court

orders.”

When an order is entered nunc pro tunc to the date of the court’s
oral ruling, this is an exception to the general rule that an order
is ineffective until signed and filed. Nunc pro tunc orders are
limited to situations where there is an obvious error that needs
correction or where it is necessary to conform the order to the
court’s original intent.

56 Am. Jur. 2d Motions, Rules, and Orders § 62 (2022). We have recognized that

“[c]ourts have the inherent power to correct their records to reflect accurately the

judgment of the court, whether the correction is necessitated by clerical errors or

inadvertence.” Coffey v. S.D. Bd. of Pardons & Paroles, 1999 S.D. 164, ¶ 9, 604

N.W.2d 238, 240 (emphasis added) (citation omitted). Thus, a nunc pro tunc order

correcting a clerical error does not amend the sentence, but rather corrects the

record to reflect the sentence actually imposed. See State v. Sims, 761 N.W.2d 527,

535 (Neb. 2009) (explaining that the “purpose of [an order nunc pro tunc] is to

correct the record which has been made, so that it will truly record the action really

had, but which through some inadvertence or mistake has not been truly recorded”

(alteration in original) (citation omitted)).

[¶42.] Other courts have recognized that a nunc pro tunc order correcting a

clerical error is effective back to the date of the original order. State v. Smissaert,

694 P.2d 654, 657 (Wash. 1985) (recognizing that a nunc pro tunc order effecting a

retroactive judgment to correct omissions in the record relates “the new sentence

back to the date of original sentencing” and “is appropriate only to correct

ministerial or clerical errors”); State v. Clark, No. 2010CA00006, 2010 WL 3784456,

at *2 (Ohio Ct. App. Sept. 27, 2010) (holding under Ohio’s criminal procedure rule

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governing clerical mistakes, a nunc pro tunc entry relates back to the date of the

sentencing entry it corrects).

[¶43.] This Court should not exercise its original jurisdiction to issue a writ of

mandamus based upon an undisputed clerical error in a sentencing order that did

not impact the Journal’s right to access Cammack’s file. See SDCL 15-25-1 (“The

exercise of original jurisdiction granted by Supreme Court by the S.D. Const., Art.

V, § 5, is reserved for consideration of matters of prerogative, extraordinary, and

general concern.”). Further, the Journal has failed to show a clear legal right to a

writ of mandamus to compel Judge Callahan to provide the criminal file that was

sealed on October 4. The record reflects that Judge Callahan heard from the parties

and made the decision to modify Cammack’s sentence on October 1,

notwithstanding the undisputed clerical error in the October 4 sentencing order.

Judge Callahan’s finding on October 4 that Cammack had satisfied all the court’s

conditions, a finding uniquely within the discretion of the sentencing court,

confirmed Judge Callahan’s decision to modify the conditions of Cammack’s

sentence and authorized Judge Callahan to seal the file pursuant to SDCL 23A-27-

14 and SDCL 23A-27-17. 12

12. I join in the majority opinion’s view that the Journal has inaccurately
postured this as a case of “governmental secrecy.” The Journal’s own
submissions show that Cammack and his counsel voluntarily provided more
information to the Journal about this case and the circumstances leading to
the charges than are available in the court file, or than would normally be
publicly accessible in a typical magistrate court proceeding that ends in a
guilty plea. In my view, the case could also be dismissed as moot because the
writ of mandamus will not provide information to the Journal that has not
already been made available. Netter v. Netter, 2019 S.D. 60, ¶ 9, 935 N.W.2d
789, 791 (“A moot case is one in which there is no real controversy or which
(continued . . .)
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[¶44.] MYREN, Justice, joins this writing.

________________________
(. . . continued)
seeks to determine an abstract question which does not rest on existing facts
or rights, with the result that any judicial determination would have no
practical or remedial effect.” (citation omitted)).

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