(dissenting).
I respectfully dissent to granting public disclosure of Johnson’s affidavit.* Just as in any other civil or criminal case, parties litigating an issue must abide by certain procedural rules in order for our courts to retain jurisdiction over a given matter.
In the present case, it is clear that the Associated Press did not abide by accepted procedural rules. It wrote a letter to former Chief Justice Wuest, with advocacy, and its cost was a 25 cent stamp. It never hired a lawyer and it never made a formal appearance. It never filed a brief. It never filed a Petition for Intervention as a party. It never filed a pleading, such as a motion, to file as a party amicus curiae. It never received any official recognition by this Court that it could appear in this proceeding. It never formally appeared before this Court, by counsel or otherwise. It completely short circuited all appellate procedure in the highest court of this state, employing a short letter and a 25 cent postage stamp.
An order was issued by this Court providing that Johnson show cause why the contents of his affidavit should not be released. This Court erred by doing so and not requiring the Associated Press to proceed by statute. Loyalty to a mistake is no virtue and we should now admit that we made a mistake for the benefit of this Court in the future. To the best of my knowledge, the letter to former Chief Justice Wuest was undated and bears no filing stamp, as of September 24, 1990, by the Clerk of this Court.
Ordinarily, an Order to Show Cause is obtained by ex parte motion supported by an affidavit or other declaration stating the facts on which the motion and order is based. 56 Am.Jur.2d Motions, Rules and Orders § 34 p. 29 (1971). However, the Associated Press never formally petitioned the court to release the Johnson affidavit. Furthermore, no affidavit, which would trigger the Court’s jurisdiction to hear the alleged right to have Johnson’s affidavit publicly disclosed, was filed. Note the statute set forth below.
Also, this case was heard as an Original Proceeding. Our Clerk’s office has filed this case as an Original Proceeding. SDCL 15-25-2 mandates that certain guidelines must be followed when filing an Original Proceeding with the Supreme Court. SDCL 15-25-2 states:
Application to commence proceeding— Fee — -Number of copies filed. Application for permission to commence such action or proceeding and to fix the procedure to be followed therein shall be ac*772companied by the form of plaintiffs proposed pleading and by a filing fee. The original and five copies of the application, proposed complaint and supporting papers, if any, shall be filed with the clerk of the Supreme Court.
Finally, the Associated Press was not present during the oral argument, as a party of record, before the Supreme Court regarding this matter, other than to sit in the audience. It has reaped the benefit of thousands of dollars of research, by members of this Court and its legal staff, all as a result of a 25 cent stamp and short letter which, unfortunately, spawned a knee-jerk response by this Court.
It is the Associated Press that desires the release of the affidavit, therefore, the Associated Press should be bound by certain procedural requirements in order to have their demand met. Namely, the Associated Press should have filed a written petition with this Court requesting the release of the Johnson affidavit and should have complied with SDCL 15-25-2 or SDCL 15-26A-74 (amicus curiae statute at appellate court level). It never did so here. Furthermore, the Associated Press and its counsel should have been present at the oral argument regarding this matter, had it first secured permission to advocate before this Court. Need I express that a letter is not a pleading? As an entity which spawned this costly and unique litigation, it made no formal appearance whatsoever. Therefore, it has no standing to make any demand nor trigger a formal opinion on the merits of its contention.
In light of this spontaneous conduct, I believe it is clear that the Associated Press has failed to adhere to well accepted procedural rules. Since these rules were not correctly followed, this Court has no jurisdiction to resolve this matter. Therefore, the majority opinion should be held for naught lest this Court encourage telephonic calls and ex parte letters birthing, without benefit of procedural safeguards, litigation which is inceptually flawed. This Court is absolutely in no position to meditate and write upon spontaneous first class mail letters with the workload that it is burdened with; South Dakota is no exception to the crisis in the appellate courts of this nation. Statistics of the Unified Court System, the Supreme Court of this state being an integral part thereof, reveal: In 1970, this Court handed down 80 opinions, and in 1989, it handed down 190 opinions; this is an increase of 138%. Yet, we still have five Justices although the constitution permits us to have two more Justices if the Legislature so decrees; the filings in 1970 were 130 and in 1989, they dramatically increased to 429, representing an increase of 230%. Were I forced to speculate, my informed intuition, based upon 12 years on this Court, is that the number of appeals will continue to rise episodically in the foreseeable future. This is not all hunch on my part. We now have the availability of legal services, which are often times free, and they substantially affect court case loads. Public defenders for criminal cases are now deeply entrenched in South Dakota. Commissions (by the dozens) exist in South Dakota and they, with other boards (by the dozens) are constantly drafting new rules and regulations to govern the people’s lives. I am constantly receiving notices of these rules and regulations, as if I could stop the engulfment of government. Needless to say, the impact on this appellate court is easy to visualize. Crying out for relief from the dictates of these commissions and boards, freighted with heavy substantive consequences, the people stream into the courts of South Dakota. Therefore, this Court is in no position to adjudicate upon informal solicitations, via letters or telephonic communications, spelling untold hours of costly research and the wear and tear on the eyes and bodies of the overworked Justices of this Court. If you, the reader, are chilled in the frigid temperatures of Alaska or bask in the sunny clime of Florida, you might also well consider that we do not have an intermediate court of appeals.
With reference to the author’s argument concerning my earlier votes and because I deign to differ, perhaps I can be the sacrificial lamb, and the media will cease and desist from writing this Court letters about cases in this Court, which I believe is high*773ly improper. If the media desires to make a motion to intervene, it is entitled to do so, just like any other citizen who desires to be heard in any given case. If I were to follow the logic of the author, I should not have accorded Attorney Johnson any due process at all. He and his lawyer were entitled to notice and an opportunity to come to our State Capitol. Attorney Blackburn did, pursuant to our notice, argue before this Court and made an excellent argument before this Court, the merits of which are addressed in Justice Sabers’ dissent. Indeed, I did vote to issue a formal opinion which then gave me an opportunity to address, formally, my concerns that the procedures employed by this Court were flawed. If no formal opinion had been issued, the theory I espouse would never be brought to the attention of the practicing Bar or the news media. Although the majority writer did vote against issuing a formal opinion, he did not, in my opinion, ever voice his objection to the “procedures employed”; rather, then acting as the Chief Justice, he received an ex parte letter and began to immediately use it as a basis to recognize the news media as a party, contrary to this Court’s appellate procedure and the rules of this Court. I did not like it then and I do not like it now; and I deeply resent the author’s criticism for now expressing my opinion on the conference draft, which opinion is bottomed in a deep desire that this institution called the South Dakota Supreme Court, which I have now served for 12 years, remain a formal body. His technique is by using intra-court temporary votes before the conference draft is placed in conference. A Justice’s temporary vote, on a case, has not historically been spread out for public view and airing because upon further reflection and study, he can change his mind. Wuest, J., seeks to shatter this 100 year precedent. This body, as an academic institution, can only survive by deliberation and not by quick judgments.
To impugn my free right of expression is to destroy the academic freedom of the members of this august body.
Although I did, in fact, vote in favor of issuing the show cause order, I did so with the same concerns that Justice Sabers explained in his dissent. Namely, that even a "faulty and unfair" hearing is better than none at all.