Zimmer, Duncan & Cole

Poaching the 4th Amendment Right to Privacy

This week, we look at how far the right to privacy extends into our business affairs (which isn't very far). And in the process, we learn about the unique profession of taxidermy.
This week's opinion, State v. William C. Klager, Jr. (2011 S.D. 12), begins and ends in the driveway of Mr. Klager's home in Stratford, South Dakota (pop. 72), a few miles southeast of Aberdeen. Mr. Klager runs a taxidermy shop out of his home. In March 2009, a Game, Fish, and Parks agent arrived at his workshop for an unannounced inspection of his records, and Mr. Klager refused. The officer left and later cited him for refusing to disclose his records. He broke no other law.
This simple scenario resulted in a whopping forty-five page opinion, and it created something we haven't seen yet this year: a 3 to 2 split of the five Justices.

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I know nothing about the skill and practice it requires to become a taxidermist, but it can't be easy getting those glass eyes to appear to follow you around the room, wherever you stand.
On the other hand, obtaining a taxidermy license is simple. It takes only a $15 annual fee and a short application to the Department of Game, Fish and Parks.
Each year, a licensed taxidermist is given a summary of the handful of rules and regulations to follow. Taxidermists must immediately tag each bird, animal, or fish with the name of the customer and date it was received, and they must keep written records with the same information from the tags, plus the owner's name and address. State law requires that these records "shall be made available for inspection by any representative of the Department of Game, Fish and Parks during normal business hours."
The public really doesn't have an interest in regulating taxidermy itself. Instead, the reason we care about what happens in a taxidermy shop is to protect our state's wildlife from poaching and overbagging. These record-keeping requirements, along with unannounced inspections discourage taxidermists from assisting poachers turn their contraband into trophies.
As the opinion tells us, Mr. Klager is not opposed to these rules. In fact, he recently served as the vice-president of the S.D. Taxidermist's Association, during which time he helped rewrite the taxidermy laws and lobbied the legislature for more frequent inspections.
At first blush, it's hard to understand Mr. Klager's refusal to cooperate with these rules. The time and money involved with an appeal like this far outweigh the actual cost of the sentence (a $151 fine and a suspended jail sentence of 30 days). So it's clear that this case is about the principle of the matter, rather than anything else.
But what is that principle? It depends on who you ask here. For Mr. Klager, the principle of the matter appears to be bringing attention to the lax regulation of taxidermists. Only 100 inspections are performed each year, even though there are over 200 taxidermists. And Mr. Klager proved the inadequacy of the law: for $151, anybody can refuse an inspection.
For the majority of three, the case revolved around a well-established exception to the 4th Amendment. The right to privacy is substantially lowered in "closely regulated businesses", especially those which have a long history of regulation in order to protect the public. In those types of businesses, we allow the government a lot of leeway to drop in and check on things (think "gun shops"). The majority pointed out that taxidermists have been regulated since 1925, and concluded that taxidermists have no expectation of privacy in their business records.
In contrast, the two dissenting justices were concerned with the dangerous precedent about to be set here. In particular, they were concerned about the right to privacy for those of us who work out of our homes. In addition, they questioned whether taxidermy is as closely regulated as the majority says, especially with the haphazard and infrequent method of inspections used by Game, Fish and Parks.
Who's the winner here? Hands down, it's Mr. Klager...because the public now knows a lot more about the importance of taxidermist inspections.
Now it's our new Governor's turn to have Game, Fish & Parks do something about it.
You can find this opinion and others on the state Supreme Court website, at www.sdjudicial.com.
In this column, I explain recent court cases and answer your legal questions in plain English. Send questions or comments to dan@zdclaw.com or "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.

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Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.