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Are the Highway Patrol's copies of a North Carolina Uniform Traffic Ticket (the District First Sergeant's transmittal copy and the issuing officer's enforcement copy with notes) public records that any member of the public can inspect, either before or after the trial of the offense?
No on all three counts. The District First Sergeant is a temporary conduit, not a 'custodian' of public records under § 132-2, and the public can get the same information from the clerk of court or th…
When a North Carolina criminal court finds that a defendant lacks the mental capacity to proceed with trial and orders involuntary civil commitment proceedings under G.S. 15A-1003(a), is the defendant required to first be examined by a qualified physician at one of the facilities described in G.S. 122-58.4, or can a law enforcement officer skip that local-physician step and take the defendant directly to a regional state psychiatric hospital?
The local physician examination is required. The 1978 AG concluded that under G.S. 15A-1003(a) and the related involuntary commitment statutes, a defendant found incapable of proceeding with trial mus…
When someone serving a sentence in a state prison becomes mentally ill and dangerous to himself or others, who is the person responsible for filing the petition to involuntarily commit him to a mental health treatment facility?
Only a staff psychiatrist at the prison. The 1978 AG concluded that G.S. 122-85, which specifically addresses involuntary commitment of prisoners, overrode the general rule in G.S. 122-58.3 that any p…
When deciding whether a child-care arrangement is big enough that it has to be licensed as a day-care facility, do you count kids who are there for only a few hours after school? And does the exclusion for relatives caring for children only cover parents and grandparents, or does it also cover great-aunts and other relatives?
Don't count the short-stay kids; do count the kids with non-grandparent relatives. The 1978 AG concluded that because violating the day-care licensing requirement is a criminal offense (G.S. 110-103 m…
When North Carolina adds new required immunizations (like red measles or rubella) to its school-entry rules, do all children currently in school have to catch up, or only kids enrolling for the first time after the new rule took effect? And if a school district let an unimmunized child stay past the 30-day grace period by mistake, can the school still exclude that child later?
Only first-time enrollees are caught by each new requirement, and the school can still enforce the rule after a missed grace period. The 1978 AG concluded that G.S. 130-87 (as amended by 1971 and 1977…
After a district court judge has involuntarily committed someone to a state mental hospital under Article 5A of Chapter 122, does the Department of Human Resources need a new court order to move the patient to a private hospital later, or can the Department transfer the patient on its own?
On its own. The 1978 AG concluded that G.S. 122-80 authorized the Department of Human Resources to order a transfer from a state hospital to a licensed private hospital without going back to court for…
Can a local Board of Realtors, which is a private trade association, require a licensed real estate agent to first join the Board (and pay Board membership fees) before that agent can apply for access to the multiple listing service that the Board operates?
No, if the MLS is an essential competitive tool. The 1978 AG concluded that real estate brokering is a 'trade' within both federal and state antitrust law, and that conditioning MLS access on Board me…
If a will has a self-proving affidavit certificate signed by the testator and the witnesses, but no separate attestation by the witnesses, can the clerk admit the will to probate? And if not, can the witnesses come back into court later and attest the will so it can be probated?
No to both. The 1978 AG concluded that the self-proving certificate under N.C.G.S. § 31-11.6 was an alternative method of proving an already-attested will, not a substitute for the underlying attestat…
In North Carolina, when a chiropractor's patient was previously imaged at a public hospital, can the chiropractor get access to those existing diagnostic X-rays for treatment, or does the hospital get to refuse and force the chiropractor to take new images?
The chiropractor can review the existing X-rays. After the 1977 amendment to G.S. § 90-153, a licensed chiropractor has the right of access to a patient's diagnostic X-ray records and laboratory recor…
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…
If a hospital or other health provider has already started building or developing a new health service before North Carolina's new Certificate of Need law was ratified in mid-1978, but the project will not be finished by the January 1, 1979 effective date, does the provider have to go back and get a Certificate of Need from the state to keep going?
No, the AG concluded, if the provider had already 'proceeded with development' before the Act was ratified on June 16, 1978. The Act applies to new institutional health service projects, but reading i…
Can a North Carolina city and the county it sits in enter into an interlocal cooperation agreement under which the city designates the county tax collector to also serve as the city tax collector, consolidating tax collection duties for both governments?
Yes. The 1978 AG concluded that under Article 20 of Chapter 160A (Interlocal Cooperation), a city and county can contract for one to perform the tax collection function of the other. G.S. 160A-460 def…
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…
If a North Carolina county or city passes a floodplain ordinance, does it apply to the State of North Carolina when the State builds something on State-owned land inside that county or city?
It depends on the source of the ordinance. The 1978 AG concluded that floodplain ordinances enacted under the general local zoning statutes (Chapter 153A, Art. 18, Part 3 for counties; Chapter 160A, A…
Can a North Carolina corporation legally spend money to take a public position for or against a question on the ballot, like a bond referendum or a school referendum, when the state's election statutes broadly prohibit corporate expenditures 'for any political purpose whatsoever'?
Yes. The 1978 AG concluded that the First Amendment, as explained by the U.S. Supreme Court in First National Bank of Boston v. Bellotti (decided April 26, 1978), protects a corporation's right to mak…
If a customer pays a North Carolina retail merchant with a check that bounces, can the merchant tack on a $5 (or similar) service fee for processing the returned check? And if so, can a collection agency that takes over the account collect that service fee from the customer?
Under certain circumstances yes for the merchant; only with an express agreement yes for the collection agency. The 1978 AG concluded: (1) G.S. 6-21.3 authorizes a $5 court-cost recovery only after a …
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…
When the Governor of North Carolina formally declares an 'energy crisis' under the Energy Policy Act of 1975 and triggers the Emergency Energy Program, does he have the legal authority to compel the Public Utilities Commission and other state agencies to implement the Program's rules and rationing measures, and can he set up his own administrative-appeal procedures for decisions made under the Program?
Yes to both. The 1978 AG concluded that under G.S. 113B-23 the Governor, on declaring an energy crisis and obtaining Legislative Committee on Energy Crisis Management approval, has authority to order …
When a state employee in North Carolina is disciplined and appeals, can the department spill the details to the news media? Does it matter whether the hearing is at the agency level or at the State Personnel Commission level, and does the public have a right to attend?
The 1978 AG concluded: (1) Departmental grievance hearings are not 'contested cases' required by law, so they need not be open and the information disclosed there stays confidential as part of the per…
Can a North Carolina county spend its money on advertising the county's advantages (to attract tourists, businesses, and industry), and can it hand a chunk of that money over to the local Chamber of Commerce to do the actual advertising? Does it matter whether the money is property tax revenue or non-tax revenue?
Yes for both, but with significant limits. The 1978 AG concluded that under G.S. 153A-149(d) and Chapter 158, Article 1, a county may levy a property tax for advertising / local development only with …
When a deed of trust and the note it secures have been lost, and the original trustee is missing or has become incompetent, can the secured party (the beneficiary or 'cestui que trust' under the deed of trust) acknowledge satisfaction of the deed of trust under N.C.G.S. § 45-37(a)(1) to clear the title from the public records?
No. The 1978 AG concluded that N.C.G.S. § 45-37(a)(1) allows only the trustee, the mortgagee, their legal representative, or a duly authorized agent of any of them to acknowledge satisfaction. The sec…
If a borrower dies before a deed of trust is foreclosed and nobody has been appointed to handle his estate, can the lender just go ahead with a power-of-sale foreclosure by publishing notice in the newspaper, or does the lender first have to get a personal representative appointed so notice can be served on someone?
The lender has to get someone appointed. The 1978 AG concluded that a power-of-sale foreclosure conducted with no notice to the deceased record owner and no hearing (because no personal representative…
When the North Carolina Department of Correction takes the money that inmates earn on work-release jobs and deposits it in interest-bearing accounts, can the Department take a slice of the interest to cover the staff cost of administering the work-release program or the cost of running the accounts?
No, the AG concluded. G.S. 148-33.1(f) provides an exhaustive, priority-ordered list of permitted deductions from inmate work-release earnings: cost of the prisoner's keep, employment-related travel a…
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…
If a North Carolina parent signs a voluntary child support agreement under G.S. 110-133 rather than going to court, how much does the clerk charge to file it, and is the fee the same as for filing a regular civil lawsuit?
Four dollars. A voluntary support agreement is the statutory equivalent of a confession of judgment, which carries a $4.00 fee under G.S. § 7A-308. The full civil-action cost ($24.00 in 1977) does not…
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…
Minnehaha and Turner Counties may be asked to endorse and participate in a private nonprofit community action corporation. Can a county create or participate in such a corporation, contribute money to it, appoint county commissioners as board members, and was the counties' inclusion in the state community action agency through the Governor's 1974 executive order valid?
A county cannot itself create or be a corporate officer/incorporator of a private nonprofit, but county officials can serve as incorporators or directors as individuals. Counties can support a properl…
When a county union is certified as the exclusive bargaining representative for highway department employees, is the county commission's mandatory duty to negotiate salaries with the union an unconstitutional delegation of the commission's legislative authority over county compensation?
No. Janklow concluded SDCL chapter 3-18 is constitutional. The county commission's duty to negotiate does not transfer its decision-making authority. Under SDCL 3-18-7 and 3-18-8 the county commission…
Must the South Dakota Department of Health accept a tribal court order of adoption as the basis for issuing a new birth certificate under SDCL 34-25-16.1?
No. AG Janklow concluded the state had no duty to accept a tribal court order of adoption for purposes of issuing an amended birth certificate. The Full Faith and Credit Clause covers state judgments …
When state employees who live in Pierre have to fly somewhere on official state business, can they be reimbursed for the mileage from their home to the Pierre airport?
Only for the portion that is outside the Pierre city limits, and even then only with Travel Commission approval. Rule 51:01:02:01 of the State Board of Finance prohibits mileage reimbursement for trav…
When the Sioux Falls Bicentennial Commission held celebrations and sold tickets to bicentennial events in 1975-76, did the proceeds from ticket sales have to bear South Dakota sales tax?
No. SDCL 10-45-13 exempted gross receipts from sales of tickets or admission to community-operated celebrations sponsored by certain municipal nonprofit corporations or associations. The Sioux Falls B…
If a person elected to the board of trustees of a South Dakota sanitary district moves outside the district during her term, must she give up her seat? Does state law require board members to live inside the district?
No. SDCL chapter 34-17 contains no express requirement that a sanitary-district trustee reside within the district. SDCL 37-14-18 requires the nominating petition to be signed by qualified electors of…
When the South Dakota Legislature adopted the Multistate Tax Compact but stripped out the line that said Article VIII (interstate audits) would be in force, did the state still get the interstate audit authority, or was that piece left out?
South Dakota got the interstate audit authority. Janklow concluded that Article VIII's section 1 (saying it would be in force only as specifically provided) was prefatory surplusage that did not survi…
Can Campbell County use its snow removal equipment on the streets of Mound City and Artas at county expense, or does it need a formal agreement first?
It needs an agreement. South Dakota's intergovernmental cooperation statute SDCL 1-24-3 allows political subdivisions to enter agreements for joint or cooperative action, and SDCL 31-12-41 specificall…
Lawrence County's Board of County Commissioners had statutory zoning authority under SDCL Chapter 11-2. The organized township of St. Onge within Lawrence County wanted to take over full zoning powers (not just fact-finding) for its territory. The St. Onge township board had been making zoning recommendations to the county zoning commission. Could the county commissioners delegate full zoning authority to the township board?
No. SDCL 8-2-9 specified the limited circumstances when a township could pass zoning ordinances (only townships near a city of 50,000+ people, which St. Onge was not). SDCL 8-2-10 expressly limited or…
The 1973 Personnel Policy Board, created by Senate Bill 71, has authority to make 'non-conflicting rules' on sick leave, vacation leave, and other fringe benefits. May the Board pass rules letting state employees use sick leave for maternity, funeral leave, or to care for ill children or spouses?
Maternity yes; funeral and family care no. Sickness has long been interpreted to include confinement caused by child birth, so maternity sick leave is permissible. But sick leave is statutorily limite…
South Dakota Highway 50 ran through Vermillion. In 1951, the state acquired an extra 35 feet of right-of-way by warranty deed in anticipation of highway widening, but the widening did not use all the new right-of-way. Vermillion now wanted to build sidewalks along Highway 50, and the sidewalks would fall entirely within the state's right-of-way, with a narrow strip of state land between the sidewalk and the private properties. Who paid for the sidewalk construction and repair: the state (which technically owned the land where the sidewalk would sit) or the abutting private property owners?
The abutting property owners. Even though the state had taken the right-of-way by warranty deed (which sounds like fee simple), Article VI, Section 13 of the South Dakota Constitution provided that 't…
The 1972 South Dakota Constitution amendment allowed the Governor to reorganize state agencies, boards, and commissions by executive order. But the same amendment carved out an exception for elected constitutional officers (Governor, Lt. Governor, Attorney General, Secretary of State, Auditor, Treasurer, Commissioner of School and Public Lands). Could the Governor use his executive-order reorganization power to strip the Office of the Commissioner of Consumer Affairs out of the Attorney General's office and move it to a different department?
No. Article IV, Section 8 of the Constitution expressly excepted elected constitutional officers (including the Attorney General) from the Governor's reorganization authority. Once the Legislature had…
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