When an emergency mental illness commitment is started in one county for a person who actually resides in another county, can the state's attorney in the county where the proceedings began send a bill for his or her legal services to the patient's home county?
Plain-English summary
A resident of County A was found in County B in a mental health crisis. The County B emergency commitment process kicked in: petition filed, allegedly mentally ill person apprehended, transported to the Human Services Center in Yankton, hearings held there. The part-time state's attorney in County B did the legal work to initiate and pursue the commitment. He then billed County A (the patient's home county) for his services. County A refused to pay. Ms. Keller asked AG Tellinghuisen to resolve the dispute.
Tellinghuisen's analysis turned on two statutes.
SDCL 27A-10-2 allows reimbursement of "apprehension and transportation" expenses from the referring county to the county ultimately proven to be the county of residence (or the state if the person is a nonresident). This reimbursement category is narrow. "Apprehension and transportation" does not in its ordinary sense include the legal work performed by a state's attorney to pursue a commitment petition.
SDCL 27A-9-15 separately provides for the appointed defense attorney representing the alleged mentally ill person to be paid by the county of residence. The legislature explicitly addressed the defense-attorney fee question. There is no parallel statute for state's attorneys. The silence is meaningful: where the legislature wanted cross-county reimbursement, it said so; where the legislature did not say so, no reimbursement applies.
Tellinghuisen offered a structural justification too. Pursuing mental illness commitments is part of the inherent duties of the state's attorney, much like prosecuting criminal cases. Those duties are paid through the state's attorney's regular county salary. Allowing reimbursement on top would be double compensation: the state's attorney would get his salary from County B and then bill County A for the same services. The legislature did not intend that result.
The answer was no. The state's attorney could not bill County A for the commitment work in County B.
Currency note
This opinion was issued in 1990 during AG Roger Tellinghuisen'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 chapter 27A-10 governing emergency mental commitments has been amended multiple times since 1990, and modern questions about state's attorney reimbursement, county-of-residence determinations, and apprehension/transportation cost recovery should be verified against current SDCL chapter 27A-10 and any applicable Department of Social Services rules.
What the opinion meant at the time
For state's attorneys handling out-of-county commitment cases, the practical answer was simple: include this work in your normal county salary, do not bill the patient's home county. The legislature treated commitment prosecution like criminal prosecution: it's part of the job.
For county commissioners receiving bills from neighbor counties' state's attorneys, the opinion gave clean ground to decline. Only apprehension and transportation costs were reimbursable.
For the patient's home county, the opinion limited its exposure. It could be billed for apprehension and transportation (per SDCL 27A-10-2) and for the appointed defense attorney's fees (per SDCL 27A-9-15), but not for the prosecutor's services.
For state legislators thinking about whether to allow cross-county prosecutor reimbursement, the opinion was an invitation: if the legislature wanted that result, it could pass a statute. Without one, the silence controlled.
Common questions
Q: Why is the patient's home county on the hook for apprehension and transportation?
A: SDCL 27A-10-2 expressly says so. The legislature presumably reasoned that the home county is the locus of the patient's ties and so should bear the costs of getting the patient into treatment, even when the crisis surfaces elsewhere.
Q: What is the Human Services Center in Yankton?
A: South Dakota's state psychiatric facility, historically the principal commitment destination for the state. Commitment proceedings often funnel patients there for evaluation, treatment, and any necessary hearings.
Q: What did the state's attorney actually do in this case?
A: The opinion does not detail the specific tasks but mentions "services" in pursuing the commitment. Typical work would include reviewing the emergency petition, appearing at hearings (if any in the referring county), coordinating with the Human Services Center, and supporting the commitment process under SDCL 27A-9-4.
Q: Could the state's attorney charge for unusual expenses like long-distance travel?
A: The opinion did not address that scenario. As a general matter, if a state's attorney incurred extraordinary unreimbursed expenses, the appropriate route would be to seek county commission approval for the specific expense, not to bill a sister county.
Q: Why is the defense attorney handled differently?
A: Because the legislature said so. The legislature wanted indigent patients to have appointed counsel and was willing to assign those costs to the county of residence. That was a deliberate policy choice; the lack of a parallel state's-attorney provision is also a deliberate (or at least operative) choice.
Q: What happens if the patient turns out to be a nonresident of South Dakota?
A: SDCL 27A-10-2 makes the State of South Dakota the backstop for apprehension and transportation costs in that case. The defense-attorney reimbursement provision (SDCL 27A-9-15) was not analyzed in this opinion for the nonresident scenario.
Background and statutory framework
South Dakota's mental health commitment system distributes costs among multiple payers: the patient (rarely), the patient's home county (apprehension/transportation, defense counsel), the Human Services Center (treatment), and the referring county (initial costs subject to reimbursement). Each cost category has its own statutory home.
SDCL chapter 27A is the operative title. Chapter 27A-9 covers commitment proceedings generally. Chapter 27A-10 covers emergency commitments. The two chapters work together: 27A-10 lets a county initiate a fast-track commitment when the patient is in crisis; 27A-9 supplies the procedural framework once the case moves forward.
The opinion's structural reasoning (state's attorney duties are inherent and paid through salary) is a common public-finance principle. State's attorneys are county officers paid by their respective counties. Their duties span criminal prosecution, civil representation of the county, and various statutorily mandated tasks like commitment proceedings. The salary is presumed to compensate the full scope of duties, not just the most common ones.
The opinion also reflects a tight reading of the statute. The legislature listed reimbursable costs; expanding the list by implication is generally disfavored. Tellinghuisen rejected the state's attorney's implicit argument that "apprehension and transportation" should sweep in the legal work supporting those activities.
Citations and references
Statutes:
- SDCL ch. 27A-10 (emergency commitment of mentally ill persons)
- SDCL 27A-10-1 (emergency commitment petition; county where person found)
- SDCL 27A-10-2 (apprehension and transportation costs; county of residence reimbursement)
- SDCL 27A-9-4 (state's attorney duty in commitment proceedings)
- SDCL 27A-9-15 (appointed defense attorney fees; county of residence pays)
Source
Original opinion text
OFFICIAL OPINION NO. 90-19
Costs for emergency mental commitments
Dear Ms. Keller:
You have requested an official opinion from this Office in regard to the following factual situation:
FACTS:
A resident of County A was found in County B to be in need of emergency mental illness commitment. Involuntary emergency commitment proceedings were initiated in County B. No hearing was held in County B, as the patient was transported to the Human Services Center in Yankton where the necessary hearings took place. The part-time state's attorney in County B sent a bill for services to County A. County A declined to pay.
Based upon these facts, you have asked the following question:
QUESTION:
Is a state's attorney in a county where an emergency mental illness commitment is initiated entitled to reimbursement for services from the county of residence of the patient?
Emergency commitment of mentally ill persons is addressed in SDCL ch. 27A-10. SDCL 27A-10-1 states that the immediate treatment of a mentally ill person is to be initiated by a petition to "the chairman of the county board of mental illness where such allegedly mentally ill person is found." (Emphasis added.) The residence of the individual at that stage of the proceeding is immaterial, as the immediate goal is the proper treatment of the mentally ill person.
The duty of the state's attorney concerning mental illness proceedings can be found in SDCL 27A-9-4, which reads as follows:
In any proceeding for involuntary commitment or detention, or in any proceeding challenging such commitment or detention, the state's attorney for the county in which the proceeding was initiated shall represent the individuals or agencies petitioning for commitment or detention and shall defend all challenges to such commitment or detention.
Thus, it is the duty of the state's attorney to pursue the commitment of mentally ill persons, including emergency commitment.
Another statute pertinent to this discussion is SDCL 27A-10-2, which reads as follows:
After examination of an application filed under @ 27A-10-1, the chairman of the county board of mental illness may order the apprehension and transportation to an appropriate facility of an allegedly mentally ill person who meets the criteria set forth in 27A-10-1.
Expenses incurred in apprehension and transportation of the allegedly mentally ill person shall be paid by the referring county, subject to reimbursement by the county ultimately proven to be the county of residence or if a nonresident of the state, by the state of South Dakota.
SDCL 27A-10-2 is pertinent not for what it includes as a reimbursable expense, but what it does not include as a reimbursable expense.
SDCL 27A-10-2 allows reimbursement for the "apprehension and transportation" of the allegedly mentally ill person. That section is silent as to any costs incurred by the state's attorney's office in pursuing the commitment for the allegedly mentally ill person. Further, "apprehension and transportation" does not in its normal sense encompass duties performed by the state's attorney pursuant to the commitment procedures.
SDCL 27A-9-15 addresses the payment of fees for attorneys appointed to represent the alleged mentally ill person. That section directs the county of residence to pay the attorney appointed to represent the alleged mentally ill person. By contrast, there is no specific statute directing reimbursement for state's attorneys.
Therefore, I am of the opinion that a state's attorney cannot be reimbursed for services rendered during an emergency commitment procedure under SDCL ch. 27A-10. The answer to the question presented is no.
I have further reviewed Title 27A of the South Dakota Codified Laws, Mentally Ill Persons, and find no statutes which would authorize the reimbursement for state's attorneys concerning these matters. Essentially, pursuing mental illness commitments is a duty of the state's attorney's office much as it is a duty of the state's attorney's office to prosecute criminals. These duties are inherent in the office of a state's attorney, and not subject to reimbursement. To allow reimbursement in such a situation would be to sanction double reimbursement; the state's attorney would receive a salary from the county for his or her services, and an additional reimbursement for mental illness proceedings. This double reimbursement was not intended by the Legislature when it passed the mental illness laws.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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