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?
Plain-English summary
A border-area South Dakota school district had a practical problem. Most residents read the Adams County Record, a legal newspaper published just across the state line in Hettinger, North Dakota. The school district contracted under SDCL 13-15-11 to send its high school students to a North Dakota school district. There was no newspaper at all published within the South Dakota school district's territory. Could the school board designate the North Dakota paper as its required legal newspaper under SDCL 13-8-10?
Mr. Wanek brought the question to AG Janklow. The analytical answer turned on two statutes operating together.
SDCL 17-2-2 sets the requirements for a newspaper to qualify as a legal newspaper. A daily must have at least 200 daily copies of bona fide paid circulation; a weekly must have at least 200 weekly copies; the paper must be a newspaper of general interest published in the English language in the county for at least one year before the publication of notices; it must be admitted to second-class mail. The definition of "published" is mechanical: it means the place where material is assembled and prepared for the printing process and from which the second-class mail permit is issued.
SDCL 17-2-11 sets the fallback rule when no in-district legal newspaper exists. The statute requires publication in a newspaper in the county where the city, town, or district is situated. If no newspaper is published in the county, then in an adjoining county's newspaper, choosing the adjoining county that is nearest the city, town, or district. If more than one adjoining county is equidistant, publication may be in any of them.
The textual question was whether "county" in SDCL 17-2-11 must mean a South Dakota county. Janklow's answer was no, as a matter of general statutory construction. Statutory words should be read in their ordinary meaning, and the purpose of requiring publication of legal notices is to inform the affected public. The media most accessible to those people should be used. Geographic boundaries should not be barriers.
So if no newspaper qualified in the school district's county at all, an out-of-state paper meeting the SDCL 17-2-2 criteria could in principle serve.
But Janklow then applied this reasoning to the actual facts. SDCL 17-2-11 says the district must use a newspaper in the county before going elsewhere. The opinion notes that "there is presently a legal newspaper published in the county in question." Because such an in-county paper existed, the district was required to use that paper, not the Adams County Record. The cross-border North Dakota paper, despite its greater local readership, fell to the in-county requirement.
The answer to the specific question was therefore no.
Currency note
This opinion was issued in 1978 during AG William Janklow's tenure. 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 13-8-10, 17-2-2, and 17-2-11 have been amended multiple times since 1978, and modern questions about legal newspaper designations, electronic publication alternatives, and cross-border publication should be verified against current SDCL chapters 17-2 and 13-8 before reliance. The qualifying criteria for legal newspapers (circulation thresholds, second-class mail permits) have evolved, and the statutory framework now interacts with newer public-notice infrastructure.
What the opinion meant at the time
For the specific border school district, the practical effect was that they had to use the in-county newspaper, even though most district residents subscribed to the Adams County Record. Local notices reaching fewer eyes was the cost of complying with the in-county-first rule.
For other school districts considering creative legal-newspaper choices, the opinion narrowed the field. The SDCL 17-2-11 hierarchy was strict: in-district first, in-county second, adjoining county third. Districts could not jump over an in-county paper to reach a more popular paper elsewhere.
For newspaper publishers, the opinion mattered for the question of where their qualifying-as-legal-newspaper criteria gave them statutory monopoly. An in-county paper got the school district's required-notice business whenever it qualified, even if it had less circulation than out-of-county or out-of-state competitors.
For residents of cross-border communities, the opinion was a quiet acknowledgment that geography sometimes does not align with statutory notice requirements. The "informed public" goal that drove Janklow's general reading of SDCL 17-2-11 to allow out-of-state papers fell to the textual specificity of the in-county requirement.
Common questions
Q: Why did the school district want to use the North Dakota paper?
A: Because most of its residents subscribed to the Adams County Record rather than to any South Dakota paper. From the district's perspective, publishing notices in the Adams County Record would actually reach the people whom the notices were supposed to inform. The in-county South Dakota paper might have lower local readership.
Q: Could the school district publish in both papers?
A: The opinion did not address this. As a general matter, school districts can publish notices in additional papers beyond the statutorily required one if they want broader reach, as long as the required publication occurs in the right one. The cost might or might not be reimbursable through normal district funding.
Q: What qualified as "published in the county" under SDCL 17-2-2?
A: The statute defined "published" as the place where the newspaper's material was prepared and from which its second-class mailing permit was issued. The county where the newspaper has its production office (not just a circulation office or sales office) is the county where the newspaper is "published."
Q: Could the South Dakota legislature have allowed out-of-state legal newspapers?
A: Yes, in principle, by amending SDCL 17-2-11. Janklow's general reading was that nothing in the existing statute categorically barred out-of-state papers when no in-county paper existed. A clearer legislative endorsement of cross-border papers would have helped border districts.
Q: What was SDCL 13-15-11 doing in this opinion?
A: It established the context. The school district was already engaged in cross-border activity (contracting with a North Dakota school district to educate its high school students). That cross-border activity made the question of using a cross-border newspaper less surprising. But the cross-border school contracting authority did not change the legal newspaper rules.
Q: Did the 200-copy circulation requirement apply to the Adams County Record?
A: Yes. The Adams County Record had to satisfy all of SDCL 17-2-2's qualifying criteria (general interest, 200 weekly copies of paid circulation, English language, published in the county for at least a year, second-class mail) to be considered a "legal newspaper" in the first place. The opinion assumed those facts had been verified.
Background and statutory framework
South Dakota's public-notice statutes built up around mid-20th-century print journalism. Legal newspapers had to meet circulation, content, and mail-permit thresholds to qualify, and the qualifying newspapers held a quasi-monopoly on certain categories of required notice publication.
SDCL 13-8-10 specifically requires each school board to designate a legal newspaper, presumably as the place the school district will publish its required notices (board meeting agendas under open-meeting statutes, audit reports, budget hearings, election notices, RFPs, etc.). Without the designation, the district has no place to publish.
SDCL 17-2-11 fills the gap when the school district itself has no legal newspaper inside its boundaries. The fallback ladder is in-county → adjoining-county-nearest → any-equidistant-adjoining-county. The ladder reflects a legislative preference for geographic proximity to the affected public.
Janklow's opinion sat at an unusual intersection: an in-county paper existed but was less popular than an out-of-state paper. The text of SDCL 17-2-11 was the controlling consideration. The in-county paper was required, even if its readership did not match real-world subscription patterns.
The broader principle is that public-notice statutes serve a procedural function (giving everyone notice in a place they could look) more than a sociological one (reaching the actual population). South Dakota's structure was rule-based, not outcome-based.
Citations and references
Statutes:
- SDCL 13-8-10 (school board legal newspaper designation)
- SDCL 13-15-11 (cross-border school contracting)
- SDCL 17-2-2 (legal newspaper qualification criteria)
- SDCL 17-2-11 (fallback rule for districts without in-district legal newspaper)
Source
Original opinion text
Selection of a legal newspaper published outside the school district
Dear Mr. Wanek:
You have requested an official opinion based on the following factual situation:
FACTS:
"X" is a school district bordering North Dakota and enters into a contract with a North Dakota school district under the provisions of SDCL 13-15-11 for its high school students. A majority of the people residing in "X" school district subscribe to the "Adams County Record" which is published in Hettinger, North Dakota. The "Adams County Record" qualifies as a legal newspaper in North Dakota. There is no newspaper published within the boundaries of School District "X."
Based on the factual situation you have asked the following specific question:
QUESTION:
Would "X" school district be authorized to designate the "Adams County Record" as their legal newspaper as required by SDCL 13-8-10?
As you have stated in your request, SDCL 13-8-10 requires each school board to designate a legal newspaper. A legal newspaper is defined as follows:
17-2-2. No daily or weekly newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless same is a newspaper of general interest and if a daily newspaper be published five days or more each week and shall have a bona fide paid circulation of two hundred copies daily, or, if a weekly newspaper, shall have a bona fide paid circulation of two hundred copies weekly, and shall have been published in the English language in the county and shall have been admitted to the United States mail under the second class mailing privilege, for at least one year prior to the publication of such notices.
For the purpose of this section the definition of the word "published" shall mean the place of an established newspaper office located within the county where material and related procedures of writing news, preparation of advertising, and other content of a newspaper, are assembled and prepared ready for the printing process and shall be the place from which its second class mailing permit is issued; but no newspaper shall have more than one place of publication during the same period of time. The word "published" does not include printing, which is defined as the process of reproducing prepared material with the use of ink or chemical means to paper by use of press equipment designed for this purpose, and the reproduction of such material by mats or photographic means for plates required for use on presses.
To be considered a newspaper of general interest said publication shall consist of not less than four pages, with a page size of not less than eleven by fifteen inches, and comply with the second class mail regulation as to content.
If no legal newspaper is published in the school district, SDCL 17-2-11 applies and provides:
Whenever publication of any kind of order or notice is required in a newspaper in any city, town or other district in a county and there is no legal newspaper published in such city, town, or district and there is no specific provision as to how such publication shall in that event be made, it shall be sufficient if the publication is made in any newspaper published in the county where the city, town, or district is situated, and if none is published in the county, then in any newspaper of the adjoining county, any part of the boundary line of which is nearest said city, town, or district, and if more than one county is equidistant by boundary, then in any of said counties.
The real issue which you raise is whether the word "county," as used in SDCL 17-2-11, must be interpreted to mean only one within South Dakota. If that is the case, a newspaper publishing outside of the state could not qualify as a legal newspaper even though it met all other statutory criteria.
In my opinion, SDCL 17-2-11 should not be interpreted so restrictively. Not only is it a general rule of statutory construction that words are to be read in their ordinary meaning, but also that statutes are to be given full legislative meaning and intent. Therefore, since the primary reason for requiring political subdivisions to designate a legal newspaper and publishing certain items is to notify and inform the interested public of the official actions being taken, the media most accessible to the persons affected should be utilized. Geographical boundaries should not become barriers in such situations.
SDCL 17-2-2 establishes the criteria for qualifying as a legal newspaper in South Dakota. If, in fact, the Adams County Record meets the qualifications, including the general circulation requirement, and SDCL 17-2-11 is applicable because there is no legal newspaper within the district or county, it is my opinion that the school board of district "X" may designate said newspaper as its legal newspaper. However, if a legal newspaper is published outside of the school district, but within the county, SDCL 17-2-11 requires the school district to publish in that newspaper. It is my understanding that there is presently a legal newspaper published in the county in question. Therefore, although SDCL 17-2 does not, in my opinion, prohibit the use of an out-of-state newspaper as a legal newspaper, the factual situation here presented does. The answer to your specific question is no.
Respectfully submitted,
William J. Janklow
Attorney General
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