South Dakota Attorney General Opinions
Free plain-English summaries of attorney general opinions issued in South Dakota, with full citations and the original source on every page.
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Can a small-town mayor in South Dakota write traffic tickets and patrol the streets if the city no longer has a police officer? Does the statute giving the mayor 'all powers conferred by law upon sheriffs to suppress disorder and keep the peace' make the mayor a law enforcement officer?
No. The AG concluded that SDCL 9-29-16 gave the mayor only the sheriff's specific power to call others to aid in keeping the peace, not the full status of a law enforcement officer. To issue a traffic…
If a company sells South Dakota consumers a contract that, in exchange for an upfront premium, promises to pay or reimburse their legal fees if they later need an attorney, is that company in the insurance business? Does it have to comply with South Dakota's insurance regulations, even though it isn't a traditional insurer?
Yes. The AG concluded that a company selling contracts that promised to pay or indemnify against legal expenses was 'doing an insurance business' under SDCL Title 58. SDCL 58-1-2(1) defined insurance …
A nonprofit hospital in Viborg, South Dakota, built a clinic attached to the hospital and then leased it to a for-profit medical clinic that operated as a private business. The hospital also built an apartment complex for semi-independent living and rented those units out. The hospital argued all of this was part of providing health care and should be property-tax exempt. Was it?
No. The AG concluded that property owned by a tax-exempt nonprofit hospital but leased out for private profit was not exempt under SDCL 10-4-12. The for-profit clinic and the rental apartment complex …
Can a South Dakota city like Spearfish use its lodging-tax revenue to help fund a private nonprofit heritage museum? Does SDCL 10-52-8, which lets cities use that tax for 'civic center' and 'promotion of the city,' cover supporting a 501(c)(3) historical organization?
Yes. The AG concluded that SDCL 10-52-8 gave cities broad discretion to use lodging-tax money for civic center facilities and city promotion, and a heritage museum operated by a 501(c)(3) nonprofit wa…
If the treasurer of a South Dakota irrigation district is also (a) the insurance agent who sells the district's insurance and (b) an officer of the bank holding the district's deposits, are either of those arrangements legal? And does SDCL 6-1-1's escape valve for small or competitively-bid contracts help save the deal?
The insurance contract was void. SDCL 46A-4-49 made any direct or indirect officer interest in an irrigation district contract a Class 5 felony, and under SDCL 53-9-1 and Norbeck & Nicholson v. State,…
When a South Dakota county or town buys heavy equipment using 'total cost' bidding (purchase price plus guaranteed maximum repairs minus guaranteed buyback), can it just add and subtract the face value of those dollars? Or does it have to discount the future numbers to present value? And does the contract need a real performance bond, or is a corporate guarantee enough?
Total cost bidding was legal, but only if it was done right. The AG concluded that adding present-day dollars to future repair costs and then subtracting a future repurchase price at face value violat…
In rural South Dakota, can a neighboring landowner just plow up and farm an unimproved section line that's never been formally closed by the township? If they do, can the township make them restore it to grass? And what counts as 'obstructing' a section line, anyway, if you're growing crops on it?
No, the farmer cannot just take a section line. Under SDCL 31-18-1, every section line in South Dakota is a public highway by operation of law unless formally vacated, and the public retains an absolu…
Can the same South Dakota county official serve as County Director of Equalization and as a school board member at the same time?
No. The County Director of Equalization is the official responsible for determining property valuations for tax purposes. A school board is a governing body that depends on property tax revenue to ope…
When a South Dakota state employee asked the state to deduct money from her paycheck to buy a retirement annuity, did SDCL 3-10-5 mean she could only use an insurance company? Or could she use her bank or her investment broker instead?
She could use any licensed provider, not just insurance companies. The AG concluded that SDCL 3-10-5 authorized state employees to direct payroll-withheld funds to 'a company or organization licensed …
Predator Control Districts have been formed in several West River counties under SDCL chapter 40-37, but stockgrowers are not paying the special tax because counties are not collecting it. Can the counties be forced to do their statutory duty, and how?
Yes. The county treasurer is the 'proper tax collecting official' required to collect predator control district taxes 'in the same manner as the general taxes' (SDCL 40-37-17). If the treasurer fails,…
Can a South Dakota state's attorney bring criminal theft charges against a library patron who borrows a book and, after repeated written requests, refuses to return it?
Yes. AG Meierhenry concluded that a borrower who refuses to return a library book after repeated requests can be prosecuted for theft of public property under SDCL 22-30A-1 (the intent to deprive can …
Under SDCL 23A-27-18.1, a court can require a probationer to serve up to 60 days in the state penitentiary as a condition of probation. Does a probationer serving that 60 days earn the good time credits that SDCL 24-5-1 gives to convicts serving a regular prison sentence?
No. SDCL 24-5-1's good time credits apply to convicts who have been 'sentenced.' Probationers under SDCL 23A-27-18.1 are serving jail or penitentiary time as a condition of probation, not as a sentenc…
If a South Dakota conservation district leases equipment to farmers, or sends its own employees to operate that equipment on private land, should it buy liability insurance? Does the district itself have sovereign immunity? What about its employees personally?
The conservation district itself was probably immune from tort liability as a quasi-municipal corporation, similar to a school district or township. But the AG warned that the district's employees wer…
South Dakota statutes require bid bonds for 'public improvements' and certified checks for county building construction. They do not address materials, supplies, and equipment purchases. Can counties still require bid bonds or certified/cashier's checks for those general purchases, and if so, in what amounts and what forms?
Yes, counties have implied authority to require bid bonds, certified checks, or cashier's checks for purchases of materials, supplies, and equipment even though no statute expressly requires it. The a…
In 1983 South Dakota, when a school district crossed county lines and property in one county had been pushed to a higher adjusted taxable value than adjacent property in the lead county, could the county commission of the higher-valued side lower the taxable percentage to bring the values back together?
Yes, when the gap was more than 5%. Chapter 73 of the 1983 Laws let the county commission of the overlapped county reduce the taxable percentage applied to property in the joint district so that the a…
South Dakota counties collect several revenue streams (bank franchise tax, rural electric tax, telephone tax, transient farmer tax, etc.) and pass them through to school districts. Some counties split the money across the school's General Fund, Capital Outlay Fund, Bond Redemption Fund, and Special Education Fund based on the current year's tax levy ratios. Other counties just credit everything to the General Fund. Which approach is correct?
General Fund only. None of the statutes governing these pass-through revenues directs the county to apportion the money across a school district's multiple funds. The county's only job is to deliver t…
South Dakota's state investment officer invests state retirement funds. SDCL 4-5-14 prohibits members of the State Investment Council from benefitting directly or indirectly from any transaction made by the state investment officer. Does that conflict-of-interest rule disqualify a state employee from serving on the council, since strong investment returns improve the retirement fund the employee is also a member of?
No. The conflict rule in SDCL 4-5-14 was not intended to bar council members from the kind of diffuse, generalized benefit that a state employee gets when the retirement system performs well. The rest…
On a South Dakota Indian reservation, an electrical inspector found two people doing their own home wiring under SDCL 36-16-15's homeowner exemption: one was non-Indian, the other was Indian. The state requires a wiring certificate under ARSD 20:44:04:01(2). Both refused, saying the state had no jurisdiction on the reservation. Does the State Electrical Commission have jurisdiction over either?
Yes for the non-Indian, no for the Indian. State jurisdiction generally extends to non-Indians on reservation fee land for matters like electrical permits, so the state can require the non-Indian to o…
If a South Dakota school district advertises for bids on fuel oil and no supplier will offer a firm fixed price for the school year, may the district sign a continuing contract with one supplier under which the price is adjusted up or down each delivery to track the supplier's documented costs?
No. The school district cannot enter a continuing contract with renegotiable pricing. Under SDCL 5-18-9.2 the district may instead reject all bids and make sale-by-sale purchases via competitive quota…
Should land in Day County owned by South Dakota and managed by the Department of Game, Fish and Parks as a game production area be classified as 'agricultural' for property tax mill-levy purposes?
Yes. The state's game production land in Day County met all three criteria of the SDCL 10-6-31.3 agricultural-land test: it was actively grazed, hayed, and cultivated on roughly 30% of acreage; the co…
When South Dakota acquired the Milwaukee Road line from Rapid City to Mitchell in 1982 and took over the line's licensing agreements, can the state Division of Railroads charge a rural electric cooperative annual rent for utility line crossings, even though state law gives the co-op a right to cross publicly owned land?
Yes. SDCL 47-21-66 protects a co-op's right to construct and maintain lines across publicly owned land, but it does not require crossings to be free. SDCL 1-44-28 gives the Division of Railroads autho…
An out-of-state corporation wants to build a pilot mining plant in South Dakota that mines about 5,000 tons of ore and affects one acre, just to test whether a full-scale operation makes economic sense. Should the pilot be permitted under SDCL 45-6B (the Mined Land Reclamation Act) or SDCL 45-6C (exploration)? And does the answer change if the pilot is larger?
Under SDCL 45-6B (mining), not 45-6C (exploration). The exploration definition expressly excludes development; the mining definition expressly includes development, and development expressly includes …
In South Dakota, can the same person serve as both a county commissioner and a state legislator at the same time? And can a state legislator also sit on the South Dakota Veterans Commission?
No to both, but for different reasons. The AG concluded that simultaneous county commissioner and state legislator service created a conflict of interest, because the legislator would have authority t…
Some South Dakota rural water associations are private nonprofit tax-exempt organizations. Can they qualify as 'public or quasi-public agencies' eligible to receive federal surplus property under federal regulations?
No. Under federal regulations (41 CFR § 101-44.207), only state agencies, political subdivisions, instrumentalities created by interstate compact, multijurisdictional substate districts established by…
SDCL 46-5-6.4 lets the Department of Agriculture take water samples from wells to validate water analyses submitted with irrigation permit applications. Some samples submitted by applicants turn out to be invalid (improper sampling, fraud). Does the Department's validation power continue after the irrigation permit has been conditionally or unconditionally approved, or after a water right based on the permit has been acquired? And who pays for the validation sampling?
The validation power is ongoing. The Department can validate water samples both during the application process and afterward, including after a permit has been granted and even after a water right has…
A meat truck operator brings fresh meat to Mitchell one day a week, every week, for six months. He has paid the transient merchant license fee throughout. Now he wants to claim his business is permanent (and therefore not subject to the transient merchant statute). Does one day a week, repeated, qualify as 'permanent' under SDCL ch. 37-12?
Yes, if he followed the right paperwork. SDCL 37-12-1 says a business operated more than six months in one place by the same person is deemed permanent. SDCL 37-12-3 sets up the filing procedure for t…
When a South Dakota city specially assesses state-owned property for a local improvement, three things are unclear: is the state property assessable at all, does the state owe interest and penalty when it pays the assessment in installments, and does SDCL 5-14-20 give the Bureau of Administration authority to approve interest payments?
State property is subject to special assessments, but the state is not subject to interest or penalty on installment payments because the legislature has not consented to it. The Bureau of Administrat…
Can a South Dakota township borrow money from a bank to buy a road maintainer (grader), spread payments over 10 years, and issue warrants to the bank for each annual payment?
No. A South Dakota township has no statutory power to enter into a 10-year financing contract for equipment. The only authorized methods to fund a road-maintainer purchase are (1) issuing bonds under …
Sioux Falls has grown across the Minnehaha-Lincoln county line, and those two counties are in different judicial circuits. For traffic and criminal offenses committed in the Lincoln County portion of Sioux Falls, can preliminary proceedings (like a guilty plea) be heard in Sioux Falls, Minnehaha County, without a change of venue? And could the legislature pass a statute letting offenses be tried wherever the city is, regardless of which county the offense actually occurred in?
Yes to the first, no to the second. SDCL 23A-17-1 lets a defendant in writing waive trial in the county where the charge is pending and consent to disposition in the arresting county, with the prosecu…
When a mineral exploration company drills a well, then signs an agreement turning over the well to the landowner so it can be used as a water well, is the company off the hook for the well? And does the state require a bond from the landowner before the conversion is complete?
Yes, the company is off the hook. SDCL 45-6A-6.14 statutorily allows the conversion and shifts the well's care to the water user (landowner or lessee). No bond may be required from the landowner: SDCL…
Can a South Dakota city operating under a city manager form of government hire a full-time fire chief for its volunteer fire department, and can the fire department's members elect the chief themselves?
Yes to hiring a full-time fire chief, but no to having the firefighters elect that person. Under SDCL 9-10-13, only the city manager appoints administrative officers in a city-manager city. The volunt…
In the late 1970s, could a South Dakota National Guard member taking a Board of Regents extension course off-campus get the reduced-tuition benefit, and did the 'C average' requirement mean the average for the most recent semester or the cumulative average across all college work?
Yes on the extension course. The reduced tuition benefit under SDCL 33-6-5 reached any undergraduate course in a state institution, not just on-campus courses. And the 'C average' requirement was cumu…
When South Dakota's psychology licensing law sunsets on July 1, 1979 and the Board of Examiners of Psychologists ceases to exist, can the Board's leftover funds be used to hold continuing education workshops for licensed psychologists, or must the money revert to the state general fund?
Must revert to general fund. SDCL chapter 36-27 authorized the Board to set continuing-education requirements (SDCL 36-27-33) but not to provide free CE or sponsor workshops. Implied powers don't reac…
If a nonprofit historical or educational corporation in South Dakota incorporates itself as a 'historical municipality' under SDCL 9-3-22 to 9-3-27, can the county still levy ad valorem property tax on the land and buildings the corporation owns?
No. Article XI, section 5 of the South Dakota Constitution makes municipal corporation property exempt from taxation, and that exemption is self-executing per Appeal of Black Hills Industrial Freeport…
Can a South Dakota county build an addition to the county 4-H building if the sole purpose of the addition is to rent space to federal agencies (ASCS, Soil Conservation Service, Farmers Home Administration)?
No. A county can rent existing space to federal agencies (that is cooperation within an existing facility), but it cannot construct an entire new structure for the sole purpose of leasing to other gov…
If a binding-arbitration ruling under South Dakota's public-employee grievance statute says a school board violated its own evaluation policy by under-evaluating a probationary teacher, can the arbitrator order the board to hire that teacher for another year? And when exactly does a probationary teacher gain continuing-contract protection?
No on the arbitration question: only the school board, not the labor commissioner, can decide whether to hire or rehire. And under the SD Supreme Court's reading of the continuing-contract statute, wr…
After the U.S. Supreme Court's April 1978 *Bellotti* decision struck down Massachusetts's ban on corporate spending in ballot-question campaigns, is South Dakota's parallel statute (SDCL 12-25-2) still enforceable? Should the South Dakota AG wait for a state court to invalidate it, or should the AG declare it unenforceable now?
Not enforceable, and the AG must say so now. *Bellotti* held that the First Amendment protects corporate speech on ballot questions; SDCL 12-25-2 banned that same speech and so cannot be enforced. The…
South Dakota law gives every person the right to have prescriptions filled at the pharmacy of their choice (SDCL 34-12B-1). It also bars exclusive supply contracts between nursing homes and pharmacies, except for hospitals, nursing homes with their own pharmacy, and nursing homes using a 'unit dose' system. Does a patient in a unit-dose nursing home retain any right to use an outside pharmacy?
No. Once a patient enters a nursing home that meets one of the SDCL 34-12B-2 exceptions (including unit-dose nursing homes), the general right to choose a pharmacy under SDCL 34-12B-1 does not continu…
Can South Dakota's Bureau of Administration save money by publishing two years' worth of state agency annual reports in a single bound volume, and can it consolidate two years of one agency's reports into a single combined 1977-78 report?
Mostly yes. SDCL 1-28-10 lets the Bureau bundle and condense reports as it sees fit. But SDCL 1-28-11 still requires each agency's report to be printed or reproduced each year in numbers sufficient to…
A South Dakota school district borders North Dakota and most residents read the *Adams County Record*, a legal newspaper published in Hettinger, North Dakota. There is no newspaper at all within the district's South Dakota boundaries. Can the school board designate the North Dakota paper as its legal newspaper under SDCL 13-8-10?
Not in this case. SDCL 17-2-11 does not bar using an out-of-state newspaper as a legal newspaper when no in-county legal newspaper exists. But the statute requires the school district to use an in-cou…
South Dakota's vocational rehabilitation confidentiality law makes it a misdemeanor to disclose information about a person who has applied for or received VR services. Does that statute prevent a VR counselor from testifying under subpoena in a worker's compensation hearing about whether the injured worker could be rehabilitated?
No. SDCL 28-9-37 forbids voluntary disclosure of VR client information, but it does not prevent disclosure compelled by a valid subpoena issued in a legal proceeding where the information is pertinent…
Can a South Dakota County Planning Commission, on its own, approve a change or amendment to the County Comprehensive Plan, or does the change require approval from the Board of County Commissioners?
The Board of County Commissioners must approve. A County Planning Commission acts in an advisory and recommending role; it does not have authority to unilaterally amend the County Comprehensive Plan. …
Can the South Dakota Board of Nursing refuse to license a nursing-school graduate who previously committed a felony, served a suspended sentence or prison term, and now wants to sit for the licensing examination?
Yes, but only under specific conditions. The Board may deny a license if (1) the felony conviction occurred within the past five years under SDCL 36-9-49(2), and (2) the conviction was not dismissed u…
When a city council approves a 3.2 low-point beer license application, can the city's residents petition to refer that action to a public vote, or is the council's decision final and not subject to referendum?
Yes, the decision can be referred. The South Dakota Constitution (Article III, § 1) reserves to the people the right to refer municipal actions, and SDCL 9-19-13 specifically subjects ordinances and r…
When a South Dakota sheriff conducts a foreclosure-by-advertisement sale of real estate and the only bid comes from the mortgagee bank itself (bidding in the property to clear its lien), what fee can the sheriff charge? The percentage commission for sales over $1,000 would be a meaningful amount.
Twenty dollars and no more. SDCL 7-12-18(30) is the specific statute for cases where the judgment creditor (here, the mortgagee bank) bids in the property. It overrides the percentage-commission statu…
Can a South Dakota county pay its highway department employees the same monthly amount year-round, even though they actually work 50 hours per week in summer and 40 hours in winter? And can the county pay them every two weeks instead of monthly?
No to the equal-monthly-paycheck idea (when based on per-hour wages). SDCL 7-22-1 requires county claims to be for services actually rendered, so an hourly employee cannot be paid an averaged amount t…
South Dakota's 1976 special motor vehicle statute let hot rods, customs, and restored cars run with modified suspensions, but an older statute (SDCL 32-15-24) flatly prohibited suspension modifications on vehicles under 6,000 pounds. Which one controls? And how much rulemaking authority does the Department of Public Safety actually have for these specialty vehicles?
The 1976 special motor vehicle statute prevailed by implied amendment. The AG concluded that SDCL 32-21-1.2 and 32-21-1.3, by specifically authorizing changed and modified suspensions on special motor…
A South Dakota rancher hauls his own cattle to a town locker plant for slaughter, brings the processed beef back to his ranch, sells it retail to customers around the state, and delivers it to them. Does he have to obtain a motor carrier compensation certificate, or do the SDCL 32-9-3 exemptions cover each leg of this operation?
The exemptions cover almost every leg. Farm-to-locker-plant and locker-plant-to-ranch are exempt under SDCL 32-9-3(9) (farmer's farm-to-community transport) and also 32-9-3(12) (raw materials between …
When a South Dakota city retains an attorney on a $30-per-hour basis to act as city attorney, can the city contract with that same attorney for a separate, percentage-of-project fee to handle the legal and fiscal work on a municipal bond issuance?
Yes. SDCL 9-14-23 expressly authorizes additional compensation for the city attorney's services in connection with the issuance of municipal bonds, as an exception to the general duties scheme in SDCL…
House Bill 847 in the 1976 South Dakota Legislature amended SDCL 58-30-23 to give the Director of the Division of Insurance discretion to waive the felony-conviction bar for general lines insurance agents (after 5 years post-conviction). SDCL 58-31-11 has identical felony-bar language for life and health insurance agents but was not amended. Did HB 847 implicitly extend the waiver authority to life and health agents too?
No. Amendment by implication is disfavored under South Dakota law and requires either explicit legislative intent or such repugnancy between provisions that they cannot stand together. SDCL 58-30-23 a…
South Dakota Retirement System rules let a current member pay for prior service credit (years of past public service that were not previously covered) by lump sum or in level installments over up to 10 years. SDCL 3-12-83 says contributions can be made by the employee 'or have made on his behalf' by the employer. Does that 'on his behalf' authorization let employers make their prior-service-credit payments in installments too?
Yes. SDCL 3-12-83 lets employers make these contributions on behalf of employees. SDCL 3-12-87 lets members pay in installments. Read together with the employer's general authority to make installment…
Can the City of Sioux Falls use its federal Community Development Block Grant funds from Public Law 93-383 to establish a direct loan or grant program for private property rehabilitation, or do state municipal-finance laws block that use?
Yes. SDCL 9-22-1 requires all municipal money to be paid into the municipal treasury and assigned to a fund by annual appropriation ordinance. SDCL 9-21-9.1 implies the municipality has authority to a…
If a South Dakota sheriff and deputies use their own vehicles for patrol but the county's mileage rate isn't enough to cover insurance, fuel, and maintenance, can the county commissioners pay for those expenses on top of the mileage rate?
No. SDCL 7-12-18(9) authorizes mileage and only mileage when private vehicles are used. SDCL 7-12-12 gives the county a different option: furnish the vehicles and equipment, in which case no mileage i…
When a child is placed in a private nonprofit group home or child care institution, is the home's administrator the child's 'person in loco parentis' for school residence purposes, and does the local school district get paid by the state for educating that child?
Yes to both. The group home administrator stands in loco parentis to the child for purposes of SDCL 13-28-9, so the child's school residence is the district where the home sits. And because the child …
South Dakota's compulsory attendance statutes (SDCL 13-27-1 through 13-27-6) require children of compulsory school age to attend school. SDCL 13-32-4 lets a school board suspend or expel insubordinate students. Can the board actually use that suspension power against a compulsory-age student, or do the compulsory attendance statutes block it?
Yes, the board can suspend. SDCL 13-32-4 expressly authorizes school boards to suspend or expel insubordinate students, and that authority operates even when the student is of compulsory attendance ag…
South Dakota passed a law that bars renewing a liquor license held by someone who has not used it for two years. Does that two-year clock run backward from the law's effective date, or does it only start counting forward from when the law took effect?
Forward only. The two-year unused-license rule applies prospectively, not retrospectively. The clock began running on July 1, 1975, the law's effective date. A licensee who had let a license sit idle …
A South Dakota law professor on the Board of Pardons and Paroles by Supreme Court appointment is moving to a full-time law-school faculty role with full salary. Can he also accept the Board's $1,800 statutory compensation and reimbursement for board-meeting expenses?
There is no statutory compensation to accept. SDCL 23-58-2 (which would have provided the $1,800 board salary) was repealed by SDCL 4-7-10.5 in 1971. The Code Commission's adopted schedule allowed Boa…
An association of three South Dakota counties (Walworth, Edmunds, Brown) and some municipalities was trying to appropriate water from a state water source for its members' anticipated future water needs. Two questions: (1) Could the association use the future-needs water appropriation provision in SDCL 46-5-38, which was limited to 'state institution, facility or property, municipality or conservancy subdistrict'? (2) Did a new statute requiring legislative approval for appropriations over 10,000 acre-feet apply to an application filed before the new statute's effective date?
On the first question, no: counties were not 'state institutions, municipalities, or conservancy subdistricts' and could not appropriate water for future use. An association that mixed counties (no fu…
South Dakota passed two bills in 1975 that both addressed state-employee sick leave: HB 625 removed the accumulation cap, and SB 102 added a five-day personal-emergency provision but did not touch the accumulation cap. They reach the governor's desk a few days apart. Which one is the law on July 1?
Senate Bill 102 prevails, even though it appears more limited. Under *Nord v. General Life Insurance Company* (S.D. 1945), when the legislature passes inconsistent acts on the same subject at the same…
If a senior citizens group sets up volunteer drivers who get reimbursed for mileage by a third-party sponsor (not by the elderly riders), are the drivers regulated as motor carriers, and are the riders considered 'guests' shielding the driver from negligence lawsuits?
Probably not motor carriers. The PUC and Department of Public Safety could classify a volunteer-driver senior transport service as 'occasional accommodative transportation' that is excluded from motor…
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Attorney general opinions in South Dakota are written by the South Dakota Attorney General's office in response to questions from state agencies, legislators, and prosecutors. They are not binding like court decisions, but courts and agencies treat them as persuasive guidance on how state law applies. Every opinion above has a plain-English question and short answer, plus a link to the full original text.