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?

Plain-English summary

A nursing-school graduate with a prior felony conviction wanted to sit for the South Dakota nursing licensing exam. The Board of Nursing's Executive Secretary asked AG William Janklow whether the Board could refuse the application on the basis of the prior felony.

Janklow walked through SDCL 36-9-49, the statute giving the Board its denial, suspension, and revocation authority. Subsection (2) made conviction of a felony in the past five years a ground for adverse action. The key word was "during the past five years." Read literally, this meant the Board's authority to deny based on the felony was time-limited: once five years had passed since the conviction, the Board could no longer cite the felony as a ground for denial.

Janklow then pointed to other statutes the Board needed to consider:

First, the first-time-offender suspension-and-discharge statutes (SDCL 23-57-4 and 23-57-4.1) provided that when a court dismissed a case after probationary compliance, the dismissal "shall not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law upon conviction for a crime." If the applicant's prior offense had been dismissed under that procedure, the Board could not treat the dismissed matter as a felony conviction.

Second, the parallel controlled-substance provisions in SDCL 39-17-113 and 39-17-114 produced the same result for drug offenses.

Third, executive clemency mattered. If the Governor had granted a pardon, the offense was treated as if never committed for purposes of licensing and other civil disabilities.

Putting it together, Janklow's bottom line was that the Board could deny a nursing license to a felon only if all of the following were true: (a) the felony conviction was within the past five years, (b) the applicant had not received first-time-offender dismissal, and (c) the applicant had not received a gubernatorial pardon. If any of those conditions was missing, the Board could not refuse on the basis of the prior felony, although the applicant of course still had to meet the other licensing requirements.

Janklow also noted that any denial decision had to follow SDCL chapter 1-26 (the Administrative Procedure Act), with notice, hearing, findings, and the right to appeal. The Board could not make ad-hoc denials; it had to build a record.

Currency note

This opinion was issued in the late 1970s. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL 36-9-49, the first-time-offender provisions cited here, and the rules governing criminal history for nursing applicants may have been amended, reorganized, or renumbered since the 1970s. Modern questions about felon access to nursing licenses in South Dakota should be verified against current SDCL chapter 36-9, the current Board of Nursing rules, and current first-offender and background-check provisions.

What the opinion meant at the time

For the Board of Nursing, the opinion clarified the boundaries of its discretion. The Board could not maintain a blanket "no felons" policy. It had to look at the date of conviction, the disposition (full conviction versus dismissal), and whether a pardon had been granted. The five-year window was a hard line, not a recommendation.

For nursing-school graduates with prior felonies, the opinion meant that the path to licensure was time-gated but not blocked. Wait five years from conviction, pursue first-time-offender dismissal where eligible, or seek a pardon, and the Board would have to consider the application on the other licensing criteria (education, examination, character) without using the old felony as a disqualifier.

For prosecutors handling nursing-school-bound defendants, the opinion provided a practical reason to consider first-time-offender dispositions where appropriate. The dismissal would protect the defendant's later access to licensing-protected occupations.

For applicants in border situations (e.g., conviction four years and ten months ago), the opinion advised proceeding through the SDCL 1-26 hearing process, which would give the applicant due-process protections and a record for appeal.

Common questions

Q: How does the five-year window work?
A: The opinion read SDCL 36-9-49(2)'s "convicted during the past five years" language as a hard line: once five years have passed since the felony conviction, the Board can no longer cite that felony as a ground for denial. The opinion did not explain the legislature's reason for choosing five years.

Q: What is "judicial clemency" under SDCL 23-57-4?
A: It is the South Dakota first-time-offender suspension-and-discharge procedure. The court withholds adjudication of guilt, puts the defendant on probation, and on successful completion dismisses the charge without entering a conviction. The dismissed matter cannot then be used to impose disqualifications "by law upon conviction for a crime."

Q: What does a gubernatorial pardon do?
A: The opinion adopts the framing that a pardon erases the offense for these purposes: "should the Governor grant a pardon, it is as if the offense was never committed." How a pardon is treated under current law should be checked separately, since this is a 1970s opinion.

Q: Does the five-year window restart if the applicant commits another crime?
A: The opinion does not address that scenario directly. A new felony would presumably restart the clock as a separate ground for denial under SDCL 36-9-49(2), but the analysis would depend on the specifics.

Q: What does an SDCL 1-26 license-denial proceeding look like?
A: It is a contested-case proceeding under South Dakota's Administrative Procedure Act. The Board issues notice of the proposed denial, holds a hearing where the applicant can present evidence and cross-examine, makes findings of fact and conclusions of law, and issues a written decision. The applicant can appeal to circuit court.

Background and statutory framework

South Dakota's professional-licensing statutes in the 1970s generally used a "five-year felony" framing as the standard disqualifier. The framing balanced public-safety concerns (a recent serious crime is a meaningful red flag for trust-sensitive occupations like nursing) against rehabilitative concerns (lifelong professional exclusion for a long-past offense undermines the rehabilitative goals of the criminal justice system).

The first-time-offender suspension-and-discharge statutes (SDCL 23-57-4 and 39-17-113) let courts give first-time offenders a probationary chance to keep the matter off their permanent record. Under those statutes, the dismissed matter does not count as a "conviction" for the disqualifications or disabilities imposed by law upon conviction for a crime.

The Administrative Procedure Act (SDCL chapter 1-26) governs all license action proceedings before state boards. The Board of Nursing cannot refuse a license without following the contested-case procedures: notice, hearing, findings, appealable decision.

Janklow's opinion ties these threads together. The Board has authority to deny based on a felony but only within the five-year window, and only when other clemency mechanisms have not erased the conviction. The procedural framework is the APA. The result: a fair, predictable, time-limited treatment of past felonies in nursing licensing.

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1316

Original opinion text

Nursing licenses to individuals convicted of felony

Dear Executive Secretary Fuller:

You have requested an opinion from this office in regard to the following factual situation:

FACTS:

An individual may have been convicted of a felony and given a suspended sentence or actually served a prison term. Following a probationary period or parole the person is admitted to a nursing school and satisfactorily completes the program.

Based on the above facts, you ask the following question:

QUESTION:

Is there any provision in the law preventing the board from admitting that individual to the licensing exam and subsequently issue a license to the board of nursing?

SDCL 36-9-49 reads as follows:

The board shall have the power, in compliance with chapter 1-26, to deny, revoke or suspend any license or application for license to practice nursing in this state, and to take appropriate disciplinary or corrective action in addition to or in lieu thereof upon proof that the licensee or applicant has:

(2) The licensee has been convicted during the past five years of a felony. The conviction of a felony shall be the conviction of any offense, which if committed within the state of South Dakota would constitute a felony under the laws thereof;

The Board has the power to deny a license to an applicant convicted of a felony upon submission of proof pursuant to SDCL 1-26. Also, upon complaint of a person the Board may deny or revoke a license of an individual who had been convicted of a felony.

The Board should be aware of first-time felony offender statutes found at SDCL 23-57-4 and 23-57-4.1, and also SDCL 39-17-113 and 39-17-114. These sections provide that discharge and dismissal of an action under these sections shall be without court adjudication of guilt and shall not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law upon conviction for a crime. Also, the Board should be aware of executive clemency provisions that may be available. Should the Governor grant a pardon, it is as if the offense was never committed.

It is my opinion the Board would have the power to deny a license pursuant to SDCL 1-26, unless: (1) five years had elapsed pursuant to SDCL 36-9-49(2) or (2) the person had been granted judicial clemency in the aforementioned sections of the South Dakota Codified Laws, or (3) the applicant had received executive clemency.

It is my opinion that the Board of Nursing is not prevented from issuing a license to an applicant convicted of a felony five years previously, assuming the applicant meets other requirements.

Respectfully submitted,

WILLIAM J. JANKLOW

ATTORNEY GENERAL

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