If South Dakota law requires one of the trustees of a county hospital to be a 'legally-qualified physician or nurse,' does that person have to hold an active medical license, or does an inactive license satisfy the rule?

Plain-English summary

Bennett County, a rural county in southwest South Dakota, was trying to fill a seat on its county hospital board. SDCL 34-8-7 said one of the five trustees had to be a "legally-qualified physician or nurse," and all five had to be "competent and responsible freeholders" (property owners) of the county. As the county chair described the situation, the local pool of people who held an active medical license, owned property in the county, and were not employed by the hospital was small enough to make the seat difficult to fill. The county chair asked the AG whether an inactive license would count.

The AG's answer was yes. The opinion turned on the Legislature's choice of "legally qualified" instead of "licensed." The AG said a physician or nurse who met the requirements of licensure in SDCL ch. 36-4 or ch. 36-9 satisfied SDCL 34-8-7 "regardless of his or her actual licensure status." He concluded that a registered, inactive status license was sufficient.

The AG cited two well-known statutory construction cases. Caldwell v. John Morrell and Company and Petition of Famous Brands, Inc. both stand for the principle that the courts assume the Legislature meant what it said and chose its words deliberately. Reading "legally qualified" as a synonym for "licensed" would have collapsed two distinct concepts the Legislature kept distinct.

The AG also leaned on the structural argument. The hospital trustee is a manager, not a clinician. The trustee does not treat patients, write prescriptions, or perform procedures. Whether the person's license is active or inactive is irrelevant to the work the trustee actually does. What matters is that the person has the background and education to bring a medical perspective to hospital governance. A registered, inactive-status physician or nurse has that background equally with an actively-practicing one.

The bottom line: a registered, inactive status license satisfies SDCL 34-8-7. The opinion does not say that holding such a license is necessary if the person otherwise meets the licensure requirements.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL 34-8-7 and the licensure provisions in SDCL chapters 36-4 and 36-9 may have been amended since this opinion was issued; counties filling hospital trustee seats today should consult the current SDCL provisions.

What the opinion meant at the time

For county commissioners filling the SDCL 34-8-7 trustee seat, the opinion says an active practice license is not necessary if the physician or nurse meets the licensure requirements under the applicable chapter. A registered, inactive status license is one sufficient example.

For a physician or nurse with a registered, inactive status license, the opinion confirms that status is sufficient for the medical qualification of a county hospital trustee. The trustee role addressed was management rather than medical practice.

The opinion addresses only the medical qualification for a county hospital trustee under SDCL 34-8-7. It does not address clinical privileges, insurance, prescribing authority, or permission to practice medicine or nursing.

For states' attorneys advising county commissions on trustee appointments, the opinion says a medical-seat candidate who meets the licensure requirements of SDCL ch. 36-4 or ch. 36-9 satisfies that qualification regardless of actual licensure status. The opinion specifically confirms that a registered, inactive status license is sufficient and does not remove the statute's separate "freeholder" requirement.

Common questions

Q: What does 'legally qualified' mean for an SDCL 34-8-7 trustee?
A: The AG said a physician or nurse who meets the licensure requirements in SDCL ch. 36-4 or ch. 36-9 satisfies the statute, "regardless of his or her actual licensure status." He concluded that a registered, inactive status license is sufficient.

Q: Does the trustee have to be actively practicing medicine?
A: No. The opinion notes the trustee is "specifically limited to management in that capacity, as opposed to practicing." The medical seat draws on the person's background and education, not on active practice.

Q: What if the physician or nurse never had a license, just medical training?
A: The opinion does not decide that person's qualification. It says meeting the licensure requirements in the applicable chapter is enough regardless of actual licensure status; it does not say the person must previously have held a registered license.

Q: Why did the Legislature require this medical seat on the board?
A: SDCL 34-8-7 does not articulate the rationale. The opinion does not elaborate either, beyond noting that a trustee's "background and education are more important in this situation than is his or her license status."

Q: What if no inactive-status physician or nurse owns property in the county?
A: Then the seat would remain hard to fill. The opinion expanded the candidate pool but did not eliminate the statute's "freeholder" requirement (owning real property in the county).

Q: Does this reasoning apply to other kinds of hospital boards?
A: The 1993 opinion addressed only SDCL 34-8-7. Other hospital-board statutes have their own trustee qualification provisions that would have to be analyzed on their own terms.

Background and statutory framework

SDCL 34-8-7 authorizes county commissioners, in counties with a county-operated hospital, to appoint a five-member board of trustees to manage or assist in managing the hospital. The five trustees must be "competent and responsible freeholders of the county," with staggered five-year terms (so one trustee is appointed each July for a new five-year term). One of the five seats is reserved for a "legally-qualified physician or nurse."

The quoted statute separately requires trustees to be "competent and responsible freeholders of the county." The county chair described difficulty finding an active-status professional who also met the county's property and employment conditions. The AG did not interpret those other conditions.

The AG cited Caldwell v. John Morrell and Company and Petition of Famous Brands, Inc. for reading statutory words according to their plain meaning. He said that if the Legislature had intended a particular licensure prerequisite it would have used "licensed" rather than "legally qualified." Meeting the licensure requirements in SDCL ch. 36-4 or ch. 36-9 was sufficient regardless of actual license status.

The county chair said it would be difficult locally to find an active-status physician or nurse who was a freeholder and not employed by the facility. The AG noted that background and education mattered more to this management role than license status, a consideration he said the Legislature "well may have contemplated, especially in relation to rural counties."

Citations and references

Statutes:

• SDCL 34-8-7 (county hospital board of trustees; one must be legally qualified physician or nurse)
• SDCL ch. 36-4 (physician licensure)
• SDCL ch. 36-9 (nurse licensure)

Cases:

• Caldwell v. John Morrell and Company, 489 N.W.2d 353 (S.D. 1992) (statutes given plain meaning)
• Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D. 1984) (Legislature says what it means)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=113

Original opinion text

OFFICIAL OPINION NO. 93-05

Qualifications of Trustee of County Hospital

Dear Mr. Slattery:

You have requested an official opinion from this Office based upon the following factual situation:

FACTS:

As chairman, writing on behalf of the commissioners of Bennett County, you have requested an interpretation of SDCL 34-8-7. A situation has developed on your hospital board in which you need the phrase "legally-qualified physician or nurse" to be interpreted. The question you have is in regards to licensure. The person at issue does not actually perform any medical duties, but is there in an advisory capacity. In your area, it would be difficult to find a nurse or physician with an active status license who is a freeholder of the county and is not an employee of the facility.

Based upon the foregoing facts, you have the asked the following question:

QUESTION:

Whether a legally-qualified physician or nurse acting as a trustee of a county hospital, as provided in SDCL 34-8-7, need be licensed to actively practice?

IN RE QUESTION:

SDCL 34-8-7 sets forth:

"To manage or assist them in the management of a county hospital, the board of county commissioners may appoint a board of trustees consisting of five competent and responsible freeholders of the county, one of whom shall be a legally-qualified physician or nurse, in which case one member of said board shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, and one for a term of five years.

"Their terms of office shall expire on the first Monday of July of the year of expiration. Thereafter it shall be the duty of such board of county commissioners annually at their regular meeting in July to appoint for a term of five years a successor to the trustee whose term of office shall expire during that year.

"Any member of such board of trustees may be removed at any time by the board of county commissioners."

It is a fundamental principle of statutory construction that if the language of a statute is clear, then one can assume the Legislature meant what the statute says, and should give its words and phrases a plain meaning and effect. Caldwell v. John Morrell and Company, 489 N.W.2d 353, 364 (S.D. 1992). The courts will assume that statutes mean what they say and that the legislators have said what they meant. Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984). In that vein, if the Legislature had meant to establish as a prerequisite that the trustee be licensed in any particular fashion, then it would have used the word "licensed." Instead, the Legislature used the term "legally qualified." In my opinion, if the physician or nurse meets the requirements of licensure as set forth in SDCL ch. 36-4 or ch. 36-9, respectively, then he or she satisfies the requirements of SDCL 34-8-7, regardless of his or her actual licensure status. The fact that the trustee is specifically limited to management in that capacity, as opposed to practicing, supports my conclusion. Obviously, the person's background and education are more important in this situation than is his or her license status, a fact the Legislature well may have contemplated, especially in relation to rural counties. Thus, the answer to your question is that a registered, inactive status license is sufficient to qualify the trustee for that position under the dictates of SDCL 34-8-7.

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