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?

Plain-English summary

Hand County State's Attorney Joan P. Baker had a problem. Patrons of the county library were borrowing books and not returning them, even after repeated written requests. The library would mark the books missing after a certain delinquency, write off the late fees, and effectively lose the book and the public money used to buy it. Could she prosecute the worst offenders for criminal theft, or was overdue-book recovery a civil matter only?

AG Mark V. Meierhenry told her yes, this was prosecutable theft.

He laid out two parallel theories. The first relied on SDCL 22-30A-1, the general theft statute: "Any person who takes, or exercises control over, property of another with intent to deprive him of it, is guilty of theft." A library patron originally takes possession lawfully (the loan was authorized), but once the patron refuses to return the book after repeated requests, the patron is exercising control over property of another. The intent-to-deprive element, which would otherwise be hard to prove, could be inferred from the act of taking combined with the refusal to return. Meierhenry cited State v. Poss, a 1980 South Dakota Supreme Court decision, as authority for the inference of intent from conduct.

The second theory used SDCL 22-30A-13, which criminalized intentional conversion of leased or rented personal property after proper notice. The statute required the notice to be in writing, demanding return, and served either by certified or registered mail or personal service. If the library treated its lending program as gratuitous rental (no rental fee but otherwise the same structure as a paid rental), the statute would apply and the prosecution could rest on the conversion theory rather than the general theft theory.

Meierhenry then made a striking move for an AG opinion: he editorialized. He noted that one library in Pierre had lost 238 books in eighteen months at an average value of $20, more than $4,000 in losses for a single library. Free lending libraries, he wrote, "are one of the hallmarks of a free country." He encouraged Baker to identify the worst offenders, file charges against them, and use the prosecution to alleviate the broader problem. He wrote that the deterrent effect of a few prosecutions should substantially reduce the problem statewide.

The opinion did not address the value threshold for petty versus grand theft, the standard for "repeated requests," or what happens if a patron returns the book after being charged. Those would be case-by-case prosecutorial decisions, not opinion-level questions.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The theft statutes cited here (SDCL chapter 22-30A) may have been amended since 1984, including the value thresholds that separate misdemeanor from felony theft. Verify current law before relying on any specific rule or remedy mentioned here.

What the opinion meant at the time

For Hand County and other South Dakota libraries, the opinion meant that criminal prosecution was on the table for chronic offenders. The opinion gave state's attorneys cover for filing what some might have viewed as petty cases.

For library boards, the opinion provided a clear procedural recipe to maximize prosecution prospects: treat lending as gratuitous rental for purposes of SDCL 22-30A-13, send written notices by certified mail or personal service, document the demands, and keep records of value. The certified-mail requirement was important because SDCL 22-30A-13 required "proper notice" defined as written demand by certified or registered mail or personal service.

For state's attorneys, the opinion confirmed that resource allocation toward chronic library theft was justifiable. The AG himself characterized the cumulative losses as serious.

For library patrons, the opinion was a warning. The "lost book equals late fee equals end of story" calculus no longer held. Refusal to return after repeated requests could become a misdemeanor or, if cumulative value was high enough, a felony.

Common questions

Q: What is the practical difference between the SDCL 22-30A-1 theory and the SDCL 22-30A-13 theory?
A: SDCL 22-30A-1 (general theft) requires the prosecution to prove intent to deprive. With a library book, intent can be inferred from the refusal to return, but the prosecution still has to make that case. SDCL 22-30A-13 (rental conversion) does not require proof of intent to deprive at the outset; it focuses on whether the borrower received the proper notice and failed to return. The conversion theory is cleaner to charge but requires the library's lending structure to look enough like a rental for the statute to apply.

Q: Did the AG say library lending is legally a rental?
A: The opinion stopped short of declaring library lending a rental as a matter of law. Instead, Meierhenry treated it as conditional: if the library board adopts a policy that treats lending as gratuitous rental, then SDCL 22-30A-13 can be used. Libraries that have not adopted such a policy may need to rely on the general theft statute.

Q: What is "proper notice" under SDCL 22-30A-13?
A: A written demand for the return of the property, addressed and mailed by certified or registered mail to the borrower, or alternatively served on the borrower in the manner provided for service of a summons. Ordinary first-class mail does not satisfy the statute. The notice burden is real, and libraries pursuing prosecution have to invest in proper service.

Q: Did the AG really say libraries are a "hallmark of a free country"?
A: Yes. Meierhenry wrote that "Free lending libraries whereby citizens can receive and evaluate information for themselves are one of the hallmarks of a free country" and that acts depriving other citizens of that opportunity "are a serious matter and should be dealt with vigorously." He encouraged Baker to work with the Library Board to identify the worst offenders and file charges.

Q: Did the opinion address how the value of the book affects the charge?
A: No. The opinion noted that the amount of money in a single book "may be relatively trivial" but that cumulative losses can exceed a library's annual acquisition budget. It did not work out the petty-versus-grand-theft value thresholds; that would be a case-by-case prosecutorial determination under the theft statutes in effect.

Background and statutory framework

South Dakota's theft offenses sit in SDCL chapter 22-30A. SDCL 22-30A-1 is the generic offense ("takes, or exercises control over, property of another with intent to deprive"); SDCL 22-30A-13 reaches the intentional conversion of leased or rented personal property after proper notice.

Applying SDCL 22-30A-13 to library lending was the opinion's creative move. The statute's text does not require monetary consideration, only "leased or rented personal property" status, so a library board that adopts a policy treating its lending as a gratuitous rental can bring the conduct within the statute, provided it serves the written notice the statute demands.

The opinion's policy point was concrete: at one Pierre library, 238 unreturned books over eighteen months at roughly $20 each came to more than $4,000, which Meierhenry said exceeded the kind of loss a library budget could absorb. The opinion reads as a nudge to state's attorneys to use the criminal tools the Legislature already provided.

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1135

Original opinion text

August 16, 1984

Ms. Joan P. Baker

Hand County State's Attorney

Post Office Box 91

Miller, South Dakota 57362

OFFICIAL OPINION NO. 84-35

Recovery of overdue library books

Dear State's Attorney Baker:

You have requested an official opinion from this office regarding the following question:

QUESTION:

Is a person who borrows a library book and after repeated requests, including written requests, refuses to return the book or acknowledge the request in any way, subject to criminal prosecution for theft of public property?

SDCL 22-30A-1 provides:

Any person who takes, or exercises control over, property of another with intent to deprive him of it, is guilty of theft.

I am assuming, for the purposes of this discussion, that the Hand County Library Board has adopted a book return policy which provides that at some point past due fees are no longer imposed and that the book is permanently missing. It is my opinion that a person, who has borrowed a book under such policy and has, after repeated requests to return the book, refused to do so, is guilty of theft. Clearly, the "intent to deprive" required by the statute can be inferred from the act of taking coupled with the refusal to return the book. See State v. Poss, 298 N.W.2d 80 (S.D. 1980).

SDCL 22-30A-13 provides:

Any person who intentionally converts to his own use any leased or rented personal property, after receiving proper notice demanding the return of the property following expiration of the lease or rental agreement, is guilty of theft. "Proper notice" means a written demand for the return of the property addressed and mailed by certified or registered mail to the lessee or renter or personal service of such written demand in the manner provided for service of a summons.

Assuming that the Library Board has adopted a policy which treats the "lending" of books as a gratuitous rental, the criminal prosecution of a person who refuses to return the property at the end of the rental period should be successful, provided the notices required by the statute set out above are provided.

Free lending libraries whereby citizens can receive and evaluate information for themselves are one of the hallmarks of a free country. Acts by one citizen which deprives all other citizens of this opportunity are a serious matter and should be dealt with vigorously. I encourage you to work with the Library Board in identifying a group of the worst offenders and filing charges against them.

While the amount of money involved in a single book may be relatively trivial, I am informed that in some libraries the cumulative effect of these losses exceeds the annual acquisition budget of the library. For example, in Pierre over the past year and one-half 238 books have not been returned; assuming an average value of $20.00, this loss exceeds $4,000.00 and must be considered a serious matter. While the Pierre Library Board, like many others, has adopted a policy of terminating library services to those who refuse to return books, the fact remains that the library and the public are permanently deprived of the book. When the public is permanently deprived of its property, theft has occurred. In my opinion, the potential for criminal prosecution should substantially alleviate this problem.

Respectfully submitted,

Mark V. Meierhenry

Attorney General