Moeller v. Weber

Filing 440

ORDER denying 436 Motion to Stay; granting in part and denying in part 437 Motion to Retain Documents Under Seal and Close File. Exhibit 1 of Doc. 437 is stricken from the record of this case and will be filed with the record of disciplinary complaints maintained under seal by the United States District Court for the District of South Dakota. Exhibit A to this Order shall be filed under seal. Signed by U.S. District Judge Lawrence L. Piersol on 9/30/14. (DJP) (Additional attachment(s) added on 9/30/2014: # 1 Sealed Exhibit A) (DJP).

UNITED STATES DISTRICT COURT

FILED

SEP 30 20i4

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

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CIV 04-4200
DONALD E. MOELLER,
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Plaintiff,
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ORDER
vs.
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DOUGLAS WEBER, Warden,
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South Dakota State Penitentiary,
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DENNIS KAEMINGK, Secretary of
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the South Dakota Department of
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Corrections in his official capacity,
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and DOES 1-20, unknown employees or
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agents ofthe South Dakota Department
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of Corrections,
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Defendants.
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Defendants have filed a Motion to Stay (Doc. 436) and a Motion to Retain Documents Under
Seal and Close File (Doc. 437), together with supporting documents.

The Court noted at a hearing in October, 2012 before the execution and then ordered on
January 29, 2014 that there be unsealing of a portion ofthe file in this case as out of an abundance
of caution the Clerk's Office sealed some documents that need not have been sealed and were not
ordered to be sealed.

Pursuant to the Court's Order ofJanuary 29,2014 the Defendants have provided the Court,
under seal, with the redactions to the sealed documents in the file, which would then allow those
documents to be unsealed provided they have the redactions on the unsealed documents. The Court

has personally reviewed each ofthose documents with the Defendants' redactions. The Court agrees
with the redactions proposed by the Defendants and the Court will also keep under seal the three

depositions that are filed as Exhibits I, 2, and 3 to Document 308. Exlnbit 4 is the deposition of
Defendant Douglas Weber, Warden, South Dakota State Penitentiary, and a named Defendant. The
three deponents in Exhibits I, 2, and 3 are not named Defendants and their identities are to remain
as protected by continued sealing. Those three depositions were taken pursuant to an Order ofthe
Court under procedures established by the Court to protect the identities but not the positions ofthe
deponents. Exhibit I is the deposition of the compounding pharmacist. Exlnbit 2 is the deposition
of the compliance officer. Exlnbit 3 is the deposition ofthe fleet manager of an EMS organization.

Document 437, filed February 11, 2014 is Defendants' Motion to Retain Documents Under
Seal and Close File and Supporting Brief. The Court previously denied closing the file with its Order
of September 30, 2013, Doc. 431.

Defendants had requested that closure in Doc. 429 filed

September 5, 2013. Thirteen exhibits were filed with Doc. 437. Exhibit I of those 13 exlnbits
contains Defendants' lawyers allegations against some of the lawyers which for a time represented
Donald Moeller.

Those allegations are not relevant to these proceedings.

In addition, after

proceedings in accordance with the Local Rules ofthe United States District Court for the District
ofSouth Dakota, United States District Judges Lawrence L. Piersol and Karen E. Schreier found the
allegations of the Defendants' lawyers to be without merit and dismissed those allegations. The
disposition by a two judge panel ofthis Court ofthose allegations will also be filed in this proceedings
as a sealed document, Exlnbit A, and no party or other person or entity has access to that document
without a Court Order, this being in keeping with the procedure in the District of South Dakota in
handling lawyer discipline matters. Exlnbit 1 to Document 437 is stricken from the record ofthis case
and Exhibit 1 will be retained by the Clerk ofthe United States District Court for the District ofSouth
Dakota as sealed disciplinary allegations.

Defendant Weber's deposition transcript which is Exhibit 4 to Document 308 is also repeated
as Exhibit 11 to Document 328 and neither is to be sealed.

The South Dakota privilege statute was not attacked in these proceedings. The American
Civil Liberties Union (ACLU) made an appearance but was never accorded any status in the case.

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Court's Order, Doc. 431. Accordingly, with that common-law access right not being litigated in this
case, the Court has applied the South Dakota privilege statute. Whether or not SDCL 23A-27A-31.2
might be overridden by countervailing interests is for decision in some other case. The "common-law
right ofaccess applies to judicial records in civil proceedings." IDT Corp. v. eBay, 709 F.3d 1220,
1222 (8th Cir. 2013). That common law right of access is not without exception. "Where the
common-law right of access is implicated, the court must consider the degree to which sealing a
judicial record would interfere with the interests served by the common-law right of access and
balance that interference against the salutary interests served by maintaining confidentiality of the
information sought to be sealed." Id. at 1223. "[T]he weight to be given the presumption ofaccess
must be governed by the role ofthe material at issue in the exercise ofArticle III judicial power and
resultant value of such information to those monitoring the federal courts." Id. at 1224 (internal
quotation marks omitted).

The Court has allowed all redactions requested by the Defendants with the exception of
Exlnbit 4, Warden Weber's deposition. However, the Court denies Defendants' request, Doc. 437,
that despite redaction all currently sealed documents remain under seal. Even though Donald Moeller
is dead, there is strong public interest in these proceedings. Debate about method of execution and
execution itself continues on. Lawyers for various parties both in South Dakota and elsewhere will
want access to these proceedings. Legislators may want similar access. Scholars surely will want
such access as is available. The general public has strong interest in these issues and they and their
elected representatives should have access to these proceedings as redacted. Especially with identities
protected, it is not in the best interests of a free and open society to completely seal from the public
court documents dealing with the most basic issue in life after the origin of life, that ofthe taking of
life by decision ofthe Government.

IT IS ORDERED:
1.

That Defendants' Motion to Stay, Doc. 436, is denied.

2.

That Defendants' Motion to Retain Documents Under Seal and Close File,
Doc. 437, is granted in part and denied in part in that the documents

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Defendants designated for sealing in whole or in part by redaction are sealed
or redacted as requested by the Defendants with the exception of the
deposition ofDefendant Weber, which is not sealed. The Defendants' Motion
to Seal the entire file is, however, denied.
3.

That Exhibit 1 ofDoc. 437, Defendants' Motion to Retain Documents Under
Seal and Close File, is stricken from the record ofthis case and will be filed
with the record 0 f disciplinary complains maintained under seal by the United
States District Court for the District of South Dakota.

4.

That Exlnbit A to this Order shall be filed under seal.

Dated

this~ day of September, 2014.

BY THE COURT:

XftWr.W.t

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L()UAlev.

~wrence L. Plersol
ATTEST:
JOSEPH HAAS, CLERK

BY:

United States District Judge

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