The Sioux Falls Argus Leader filed a motion to intervene Thursday with U.S. District Court for the District of South Dakota in hopes of unsealing court documents involving a Vermillion police officer and the lawsuit she brought against the city of Vermillion and Matt Betzen, Vermillion’s police chief.
According to a copy of the motion to intervene obtained by the Vermillion Plain Talk, Jon E. Arneson, the Argus Leader’s attorney, filed the motion and “moves the Court for an order permitting Argus to intervene in this case for the sole purpose of opposing the joint motion to remove, destroy or permanently seal certain documents currently on file.
“Argus also requests that the Court not require a written brief … to apply to this intervention motion.”
The Argus Leader reported Oct. 24 that Jessica Newman, a Vermillion police officer, sued the City of Vermillion and Betzen on Sept. 6 in U.S. District Court. On the same day, lawyers for both Newman and Vermillion asked that Newman’s complaint be sealed, a highly unusual request.
According to the Argus, Judge Larry Piersol agreed to seal the complaint for 30 days while Newman and the city negotiated a settlement. Last week, lawyers for Newman and Vermillion asked that the complaint either be removed from the filing, or be permanently sealed.
Piersol rejected the motion to remove the complaint on Wednesday, Oct. 23, according to the Argus report, and he ordered the parties to show “good cause” for why the complaint should be permanently sealed. “Given the strong public interest in being able to access documents filed in federal court, good cause must be shown for any permanent sealing,” Piersol wrote in his order.
In its motion to intervene, the Argus Leader also filed a motion objecting to the complaint being permanently sealed.
A copy of that motion, also obtained by the Vermillion Plain Talk Friday, notes that the original motion to seal the documents was predicated on the following allegation: “The public filing of the Complaint … presents a high degree of probability that the working of the Department in view of anticipated public dissemination would be disrupted during the critical period of time in which the parties are pursuing a mediated settlement of the matters at issue in this action, and public filing during this critical period of time will likely impair or inhibit the parties in carrying out their duties … “
The Argus Leader notes in its motion “That time has come and gone. The case was mediated and settled. The alleged purpose for seeking the extraordinary measure of a sealed complaint was satisfied.”
The Argus Leader reported Thursday that lawyers for Newman and Vermillion, in their motion to permanently seal the complaint, noted that the police officer and the city reached a settlement on Oct. 3. The Argus Leader requested a copy of the settlement agreement on Thursday, Oct. 24. Vermillion City Manager John Prescott referred the request to the city’s lawyer for this case, Lisa Marso. Marso did not immediately respond to the Argus Leader’s request for the settlement agreement.
The exact allegations made by Newman are in the sealed complaint. The lawsuit was filed as a civil rights employment suit, reported the Argus Leader Thursday. According to court documents, Newman filed a discrimination complaint with the South Dakota Division of Human Rights and the U.S. Equal Employment Opportunity Commission on May 1, 2018, claiming the discrimination started in 2013 and continued through May 1, 2018.
On June 6, 2019, the U.S. Department of Justice’s Civil Rights Division issued Newman a “right to sue” notice, giving her 90 days to file a federal suit, according to the Argus Leader.
In their request to seal the complaint permanently, the lawyers for Newman and Vermillion argue its release would be disruptive to the department and the city.
“The complaint is a detailed 163-paragraph complaint plus exhibits setting forth accusations involving other employees and conduct of the public, and the parties continue to believe dissemination of complaint and motions will impede the plaintiffs (sic) and city’s ability to carrying out their duties to protect the persons and property of the city and to ensure public safety,” the motion to seal says, according to Thursday’s Argus Leader report.
A court docket obtained by the Vermillion Plain Talk shows that Newman filed the complaint Sept. 6, with the order granting the motion to seal the complaint made by Piersol that same day. The docket also shows that on Sept. 9, mediation was scheduled Oct. 3 in the grand jury room of the federal courthouse in Sioux Falls before U.S. Magistrate Judge Veronica Duffy.
That mediation was apparently successful, for the docket indicates a settlement agreement on Oct. 3. The next day, the docket shows a joint motion to seal an existing document from the previous month filed by Betzen. That order was granted by Piersol.
On Oct. 18, Betzen made a joint motion to remove the complaint from filings or to permanently seal the complaint and motions to seal. Piersol issued an order on Wednesday denying Betzen’s motion and on Thursday, the Argus Leader filed its motion to intervene and unseal the documents.
“With some notable exceptions, our judicial system is supposed to be open and transparent,” Argus Leader News Director Cory Myers said in the newspaper’s Thursday report. “There’s a reason for that. A transparent legal system ensures accountability and guards against misdeeds and cover-ups.”
Newman joined the department in March 2013. She is the department’s only female patrol officer, according to court documents.
Arneson, the Argus Leader’s attorney, noted in his opposition to the sealing or destruction of the documents that “It does not appear that the records retention statutes covering the federal judiciary casually permits the destruction of records. To the best of the Argus’ knowledge, electronically filed documents in a civil case are generally considered to be permanent records. Although those records may eventually be transferred to the National Archives and Records Administration, it does not appear that the Directors of the Administrative Office of the United States Courts’ document retention schedules authorize routine destruction.”
Arneson also notes that the filing of the lawsuit, the mediation and the settlement are “a public sector matter.
“As such, it is of greater public interest and concern and demands a higher level of transparency,” he states.
In his conclusion to his motion to oppose the sealing of the documents he writes, “Argus submits that whatever causes for secrecy the parties allege, they will pale in comparison to the public’s rightful expectation that their federal courts function openly, except under extraordinary circumstances that are not present in this case. Therefore, Argus respectfully requests the motion to remove, destroy or permanently seal the previously filed complaint and sealing motions in this case be denied.”