Does SDCL 23A-40-7 allow the Davison County Board of Commissioners to issue a bid for a professional services contract under which a single attorney or law firm would handle the bulk of indigent defense representation in the county, rather than (a) creating a public defender's office or (b) using case-by-case court appointments at hourly rates?
Plain-English summary
The Davison County Board of Commissioners (Davison County is home to Mitchell, in southeast South Dakota) had a budget problem with indigent defense. Under SDCL 23A-40-7, every county must provide representation to indigent criminal defendants. Davison was paying attorneys case-by-case at preauthorized hourly rates. The costs were volatile and unpredictable, and the Commission wanted a more stable financial model.
The Commission proposed a third option: bid out the bulk of indigent defense work to a single attorney or law firm under a professional services contract. The contractor would handle most cases at a fixed annual price, but the court could still appoint other counsel on an hourly basis for conflicts of interest, capital cases, habeas corpus proceedings, and appeals. The contractor would not be a county employee, and the county would not run a public defender's office.
Mr. Papendick (probably the State's Attorney or Commission's outside counsel) asked AG Roger Tellinghuisen whether this structure was lawful under SDCL 23A-40-7.
Tellinghuisen's answer was yes, with several important caveats.
The statute lists three methods of providing indigent representation: (1) establish and maintain a public defender's office, (2) arrange with the courts to appoint attorneys on an equitable basis through a systematic, coordinated plan, or (3) a combination of (1) and (2). The Commission's proposal fit within (2) or (3): the bid contract was essentially a structured way to arrange systematic court appointment to a single contracted attorney for the bulk of cases, with traditional court appointment for exceptions.
The opinion identified several requirements for the bid process to satisfy SDCL 23A-40-7's "equitable basis" standard:
First, the bid had to be open to all attorneys in the county who wanted to submit a bid. A pre-selected single attorney without a competitive process would not be equitable. Joint bids from multiple attorneys were acceptable to ensure equity between sole practitioners and multi-member firms.
Second, the selection had to consider competence, not just price. The Commission had to inquire into the attorney's or firm's "ability to handle the potential caseload, experience, qualifications, etc." A bare low-price bid from an unqualified attorney would not be acceptable.
Third, the circuit court had to approve the arrangement. SDCL 23A-40-7(2)'s "arrange with the courts" language gave the courts a co-decisional role; the county could not impose a plan unilaterally. The court would have to agree that the bid arrangement provided adequate, ethical representation for indigent defendants.
Fourth, the contractor was not a county employee. The professional services contract was for legal services only. The Commission could not direct the contractor's day-to-day work, control office expenses, or supervise legal decisions. The contractor remained an independent attorney with fiduciary duties to the indigent defendants assigned by the court.
Fifth, the Simpson v. Tobin limit on unlawful expenditure did not apply here. Simpson had involved an expenditure that contradicted a specific state statute. Davison County's bid arrangement did not contradict SDCL 23A-40-7; it provided one acceptable way of fulfilling the statutory duty.
Sixth, the contractor would not handle every case automatically. The court retained discretion to assign cases. For conflicts of interest, capital cases, complex appellate work, and habeas corpus, the court could appoint other counsel at hourly rates, billed to the county.
The opinion concluded that the proposed structure was a valid alternative to the case-by-case appointment system Davison had been using. The county could move forward, subject to a competitive bidding process and court approval.
Currency note
This opinion was issued in 1989. 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 chapter 23A-40 has been amended multiple times since 1989. The South Dakota Public Defender's Office structure, the development of statewide indigent defense funding mechanisms, and U.S. Supreme Court decisions on Sixth Amendment standards for indigent defense (especially Strickland v. Washington and Padilla v. Kentucky) have all developed since 1989. Modern questions about county indigent defense arrangements should be verified against current SDCL chapter 23A-40 statutes, current Supreme Court of South Dakota rules, and current federal Sixth Amendment case law.
What the opinion meant at the time
For the Davison County Commission, the opinion was a green light to issue a request for proposals from county attorneys for the indigent defense contract. The structure was workable as long as the Commission followed the procedural safeguards Tellinghuisen identified.
For attorneys in Davison County, the opinion meant a chance to bid for a substantial revenue stream. A multi-year flat-fee contract for the bulk of indigent defense would provide a predictable income base. Sole practitioners and small firms could combine into joint proposals to compete with larger firms.
For the circuit court judges in Davison County, the opinion confirmed their role as co-decisionmakers in the new arrangement. The county could not impose a contract structure that the court did not approve. The court remained the ultimate appointer of counsel for each case.
For other South Dakota counties watching Davison, the opinion was a template. Counties with similar budget pressures could consider similar bid-based structures. The opinion did not require every county to use the bid approach, but it sanctioned the method where it made sense.
For indigent defendants, the opinion did not change their substantive rights. They would still receive court-appointed counsel under the Sixth Amendment, with the only difference being that the appointment would default to the contract attorney rather than rotating through the county bar.
Common questions
Q: How is a professional services contract different from a public defender's office?
A: A public defender's office is a county department with the attorney as a county employee, county-provided office space and overhead, county HR oversight, and integration into county budgeting. A professional services contract is a contract between the county and an independent attorney or firm; the attorney maintains a private practice with private overhead and the county pays only the contracted fee. SDCL 7-16A-3 through -5 govern public defender offices; the bid contract is governed by ordinary county contracting rules.
Q: Why does the court have to approve the arrangement?
A: Because the court is the appointing authority for indigent defense counsel under SDCL 23A-40-7(2). The statute's "arrange with the courts" language makes court agreement a necessary element. The court must be satisfied that the bid contract will provide adequate representation; otherwise it can refuse to make appointments under the contract and demand a different arrangement.
Q: What about conflicts of interest?
A: The opinion expressly contemplates that the bid contractor will not handle every case. Where the contractor has a conflict (e.g., previously represented the victim, has a personal connection to the defendant, has a financial interest in the outcome), the court appoints other counsel at hourly rates. The county budgets separately for these exceptional appointments.
Q: Why are capital cases excluded?
A: Capital cases require attorneys with specific death-penalty experience and substantial resources for investigation, mitigation, and trial preparation. A general indigent defense contract is not the right vehicle for capital representation. Most South Dakota capital cases involve specially-appointed counsel with capital experience.
Q: Does this opinion still represent current law?
A: The structural analysis (SDCL 23A-40-7's three methods, the role of the court, the equity requirements) remains conceptually relevant, but specific dollar thresholds, indigency standards, and federal-constitutional requirements have evolved. Counties considering the structure today should consult with current state's attorneys and circuit court judges before designing a procurement.
Background and statutory framework
The Sixth Amendment right to counsel was applied to the states by Gideon v. Wainwright (1963). South Dakota implemented its indigent defense obligation primarily through county-level appointment systems, with SDCL chapter 23A-40 setting the framework. Counties had three approved methods: public defender office, court-appointment system, or combination.
The case-by-case appointment system at hourly rates was the default for most South Dakota counties. It worked but had significant downsides: unpredictable annual costs, difficulty in budgeting, inconsistency in quality across cases, and the burden on local attorneys who had to balance indigent appointments with their private practices.
Public defender offices solved the budgeting and consistency problems but required substantial overhead. They were practical in the larger counties (Minnehaha, Pennington) but not in smaller counties like Davison.
The bid contract emerged as a middle path: lock in a known annual cost, get a dedicated attorney with consistent quality, but avoid the overhead of a full public defender office. The trade-off was that the contractor's compensation was decoupled from the actual case volume, which could create incentive issues if the contractor was paid per case versus paid annually.
Tellinghuisen's 1989 opinion legitimized the bid approach. He did not make it mandatory, but he confirmed that counties choosing to use it could do so within the SDCL 23A-40-7 framework.
The Simpson v. Tobin citation in the opinion warrants brief note. Simpson was a 1985 South Dakota Supreme Court case about unlawful expenditure of public funds in contradiction to state statute. Tellinghuisen distinguished it: the Davison bid plan did not contradict any statute and did not constitute unlawful expenditure; it was simply one of three statutorily-permitted methods of providing indigent representation.
Source
Original opinion text
OFFICIAL OPINION NO. 89-05
County establishment of indigent defense representation
Dear Mr. Papendick:
You have requested an official opinion from this office relating to the following factual situation:
FACTS:
The Davison County Board of Commissioners is currently looking into various alternatives to provide for representation of indigent defendants within the county. Specifically, the county commission would like to fulfill their statutory requirement for providing such representation in a manner which is more economically feasible than is presently the case. The method currently being implemented by Davison County is a case-by-case disbursement at preauthorized hourly rates. In the past, a flat rate schedule had been implemented in an attempt to stabilize the costs associated therewith.
In an attempt to bring these costs down to a more manageable and predictable level, the county commission is currently considering the use of a bid process to engage the professional services of an attorney or law firm to handle the bulk of legal representation of indigent criminal defendants in the county. There would necessarily need to be exceptions made, however, in cases of conflict of interest, capital cases, habeas corpus proceedings, appellate work, etc. When these situations arose, it would be left up to the court to appoint appropriate representation which would be charged against the county on an hourly rate as is currently the case.
It is proposed that the attorney or law firm which would be awarded the professional services contract for indigent defense representation would not be considered county employee(s) nor would the county commission be responsible for the establishment, maintenance, or overhead expenses normally associated with the operation of the attorney(s) office. Thus, the county commission is not contemplating creating a public defender's office, per se. Rather, they are seeking a legitimate alternative to the current method utilized for providing for such representation.
QUESTION:
Does SDCL 23A-40-7 permit the Davison County Board of Commissioners to enter into a professional services contract with an attorney or law firm within the county to provide for the bulk of indigent defense representation for the county?
SDCL 23A-40-7 specifically provides that:
The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in 23A-40-6. They shall provide this representation by:
(1) Establishing and maintaining an office of a public defender;
(2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or
(3) Adopting a combination of subdivisions (1) and (2) of this section.
In those counties which have established an office of public defender, any proceedings after judgment may be assigned to the public defender.
In regard to subsection (1) of the foregoing statute, the county commission has indicated that it does not wish to establish and maintain a public defender's office. Yet, under subsection (2), they would like to give all the attorneys in the county the opportunity to handle the bulk of the indigent defense work in an attempt to stabilize the expense associated therewith. Subsection (3), however, sets forth that a county can provide this representation by combining different characteristics of the two previously mentioned methods.
The proposed plan to contract out for professional services through a bid process will follow the spirit of the law if the opportunity to bid is open to all attorneys who would like to submit a bid therefor. The fact that the arrangements are to be made on an equitable basis pursuant to statute does not necessarily relate to a case-by-case arrangement. Instead, the bidding process itself can prove to be equitable to all interested parties over a period of time. It is important to note that the statute does not specify how the county commission may go about making arrangements for indigent representation. The bid process certainly would seem to be a viable option for setting up this type of an arrangement with the courts.
Moreover, it would be my opinion that the final selection process must necessarily involve a systematic inquiry into the attorney or law firm's ability to handle the potential caseload, experience, qualifications, etc. for it to be an acceptable arrangement. In addition, it should be remembered that before any such agreement is finalized, the court should be consulted about the proposed plan and its approval must be achieved. Without the court's approval, I do not believe the county can force the court to honor the professional services contract for such representation. It cannot be contended, however, that the circuit court is solely responsible for the establishment of indigent defense representation under SDCL 23A-40-7(2). Rather, the county commission may arrange with the court to provide for such representation on an equitable basis as previously indicated and under a systematic and coordinated plan which is workable for all. In proposing a plan as is questioned herein, the county commission is merely seeking to fulfill their statutory obligation of providing the necessary representation for indigent persons. Under the proposed plan, the court would not be obligated to assign a case to the contracting attorney in every instance. The attorney would simply be agreeing to be available for appointments to such representation in a majority of cases where a defendant establishes indigency.
In addition, I see no reason to limit bid proposals to individual attorneys or firms. By that I mean a group of otherwise unassociated attorneys could submit a joint proposal agreeing to provide these services jointly as opposed to individually. This arrangement would assure equity when considering sole practitioners versus multi-member firms.
By providing for indigent defense representation under a professional services contract, the county commission would simply be contracting for the attorney or law firm's professional services. They would not be attempting to act in an advisory or management capacity. The control of the office would lie directly with the attorney or attorneys who are responsible therefor, and it would not be subject to supervision by the county commission or any other body. In this way, the proposed arrangement would differ from the creation of an actual public defender's office. See SDCL 7-16A-3, 7-16A-4, 7-16A-5. Moreover, such an arrangement would not provide for the unlawful expenditure of public funds because there is no direct prohibition against providing for indigent defense representation in the proposed manner. Unlike the situation in Simpson v. Tobin, 367 N.W.2d 757 (S.D. 1985), the proposed plan does not entail the expenditure of public funds in direct contradiction to state statute. In fact, the county is ultimately responsible for paying the expenses associated with appointments for indigent representation. The manner in which they choose to expend these funds is not outcome determinative of the question involved herein. Nevertheless, as previously indicated, before the proposed plan were to be implemented, it must necessarily be offered to the circuit court in an attempt to present a workable and effective arrangement for all involved.
In light of the foregoing, it is my opinion that the answer to your question is "Yes." The Davison County Board of Commissioners may seek to provide for the representation of indigent persons within their county through the acceptance of bids for a professional services contract with a licensed attorney from the county. The purpose of this contract would be to provide for the bulk of the county's indigent defense representation. Yet, the county would not be going so far as to create a public defender's office. The implementation of the proposed systematic and coordinated plan for these appointments should, however, include the input of the circuit court.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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