Regents hope to move PETA court action to Pierre

It will be at least a week before it is known whether legal proceedings involving People for the Ethical Treatment of Animals (PETA), the University of South Dakota, and the South Dakota Board of Regents will continue in Vermillion or be moved to Pierre.

Michael L. Luce, an attorney from Sioux Falls representing the Regents, told First Circuit Court Judge Steven Jensen Wednesday morning that legal proceedings should be moved to Pierre, where the Regents' offices are located. He also indicated in his arguments before the judge that the university should be removed as a defendant in the complaint.

Caitlin Collier, a Vermillion lawyer, countered that several times in recent years, the University of South Dakota and the Regents have dealt with lawsuits in Vermillion, demonstrating that it would be proper for court action to proceed in the local court system.

Jensen told the two attorneys at the conclusion of Wednesday's hearing that he didn't believe statutes that had been cited regarding public officers applied in this case.

"But I don't know about USD," he said. "I still have some questions about whether they are a proper party defendant. I want to take a look at that. I don't know if they (the statutes) have the university and the Board of Regents as separate parties that can be sued."

"Would you be willing to accept any briefs that address that particular question?" Collier asked the judge.

"If you want to submit something, I won't preclude you from doing it," Jensen replied.

The judge agreed to give the attorneys a week to file that additional information.

The Board of Regents had 30 days to respond to a complaint filed in First Circuit Court in Vermillion on Feb. 3 by Collier on behalf of PETA. The response included a motion by the board for a change of venue.

Luce noted that the corporate offices of the Regents are located in Hughes County, specifically, in Pierre.

"As such, we would request that the court change the venue, based upon the venue statutes," Luce told Jensen. "Venue is obviously a creature of statute, and there is no other provision … for venue anywhere else other than the residence of the defendant. For public bodies and corporations, it would be their principle place of business."

Luce also cited a past legal decision that states that the courts would have no discretion but to grant a change of venue if a response is properly filed.

The court complaint filed by PETA last month seeks information from USD and the South Dakota Board of Regents about experiments conducted on animals by researchers on the university campus.

PETA is claiming that the Regents and USD are violating South Dakota's open records law, and stated in a press release issued Feb. 3 that USD administrators have failed to provide the organization with documents related to the university's taxpayer-funded experiments on monkeys.

"The action is PETA versus the South Dakota Board of Regents and the University of South Dakota," Collier told Jensen, "so we move that USD is a proper defendant in this case. They (USD) have been named in other cases. In this case, a USD employee, not a member of the Board of Regents, handled this particular FOI (Freedom of Information) request. It is the USD employee that basically said 'no, these are the things you can't have,' and the BOR (Board of Regents) delegates a lot of its administrative power to institutional executives."

Collier was referring to Laura Jenski, USD vice president for research. In July 2008, PETA submitted a public records act request to Jenski, and also to James Shekleton, general counsel for the Regents.

The request was denied, and an appeal through the South Dakota Board of Hearing Examiners was also turned down.

Action by the South Dakota Legislature during its session last year amended South Dakota law pertaining to public records, prompting PETA to once again request records from USD.

According to court papers filed Wednesday, USD responded on July 31, 2009, claiming that certain information requests were denied based upon exemptions in the new law and that USD would charge an estimated fee of $2,000 to provide the requested information.

Court files show PETA requested 19 pieces of information in the summer of 2009, ranging from protocol revision request forms and veterinary medical records, to video and photographic footage of experiments, and copies of various reports, correspondence and minutes.

That request was ultimately denied. PETA made a third request in late October, paring its list of requested documents from 19 to 11. It also asked for copies of three records pertaining to the use of rabbits in experiments at USD.

Jenski responded to this request from PETA with a specific reason for denying nearly every document. In some cases, she noted, the requested document didn't exist. Some of the materials being sought were exempt from South Dakota public records law to protect specific details of the research.

In some instances, Jenski agreed to provide information, such as meeting minutes pertaining to experiments, but personnel names were redacted in accordance to state law.

"This was a vice president at USD that was making these decisions," Collier said.

"Why isn't that person named (in the complaint)," Jensen asked Collier, "if they are the person who made the decision?"

Collier cited a state statute that requires that court actions be tried in the county where the "cause" for the action arose. "We did not name this specific person, but we did name the institution," she said, referring to USD, "as separate from the Board of Regents."

She referred to Jenski as a public official. "We believe the statutes that we're looking at pertaining to the right to have access to this information specifically talks about public officers and public officials."

Jenski, Collier said, is not a public official to the extent that her position was created by statute. "However, she is the person who is involved in making the determinations, and they were made in Clay County."

The South Dakota Public Records Act imposes duties on public officials and entities, she said. "The entity, USD, is a proper defendant, so the proper county (for the legal proceedings) is here where USD is located."

Collier added that USD wasn't added as a defendant to the complaint as a means of controlling venue.

"The Board of Regents was added as a requirement because they are the administrative body ahead of USD," she said. "The actions that took place, parties that are actually involved, all of the witnesses, everything that is involved is here in Clay County."

Collier cited several lawsuits that have gone to court in recent years involving the Regents and USD. "Venue was appropriately found in Clay County," she said. "I don't think this is any different than any of those other actions."

Luce noted that the one of the statutes Collier was referring to talks specifically about action against a public officer or person.

"That's not what this action is," he said. "She can talk about some public officer being involved, but the subsection in the venue statute clearly does not relate to state agencies or anything other than actions against officers or persons."

He told Jensen it would be improper to turn the filed complaint, which does not name a public officer or person, "into such to avoid the venue problem."

Luce discounted the argument that the University of South Dakota is a proper party because they have been sued before, and that the court action has taken place in Clay County.

"They may have been sued on issues regarding employment and things like that, but the statute that I cited in my demand for a change of venue is very specific," Luce said.

That statute, he said, indicates that the Board of Regents is the "body corporate" to be sued regarding holding, leasing and managing property belonging to educational institutions under its control.

"That's what we're dealing with here," Luce said. "The issue is controlling public records, and whether those should be released under the public records act."

PETA's declaratory judgment, filed last month, requests that:

• The court require the disclosure of all public records requested by PETA last October, which USD and the Regents have already agreed not to disclose.
• The court requires USD and the Regents to waive the costs of production, or reduce the costs based upon an accurate estimate.
• That USD and the Regents pay all of PETA's attorneys fees, tax and costs incurred by taking this legal action, and
• Any other relief to PETA deemed just by the court.

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